TORTS UNDER

PIL

Hemakshi Jad
 Torts as commonly understood in Common
law are civil wrongs against an individual, his
property, and/or reputation.
 This includes negligence, trespass,
defamation, etc. In certain instances the act
may qualify as both a tort and a crime at the
same time, for example assault.

 A tortious act may also arise from a

contractual background, in which case the
injured party is given the choice of suing
either for breach of contract or damages for
tort. The option of claiming relief either in
contract or tort is offered in English law as
well as India.
In private international law disputes, the court
chooses which law is applicable in each legal issue
involved in the case. In choosing, the intensity and
nature of the link between the law and the case
plays a huge role.
IN CROSS BORDER TORTS, IF
(a) when the act is committed in one country
but the proceedings are brought forth in
another, the law of the forum where the
claim is brought, or the law of the forum
where the tort was committed, may apply

(b) when the act is committed in one country

but its effect is felt in another country,
the law of the forum where the tortious
act was committed or the law of the place
where its effects were felt may apply.
 The court chooses on the basis of rules of
private international law.

 Theories vary as to whether the lex fori or the

lex loci delicti must be chosen, or if the court
must only apply the law most connected with
the facts and circumstances in a particular
claim/case.

 The aim must always be to apply the theory in

such a way that it provides certainty and is still
flexible enough to accommodate complex cases.
 The problem of discerning the appropriate
applicable law in the case of cross-border torts is
extremely complicated.

 The reason behind this is that at a very basic level of

the facts of a tort related claim there are multiple
connecting factors such as the place of the tort, the
nationality and domicile of the parties, etc.

 To add to this basic concern, in the case of cross

border torts an added problem of determining the
actual jurisdiction where the tort was committed
arises.
 In addition there are also a wide variety of tortious
issues that may arise – limitation, damages, etc.

 The question that then arises is whether the same law

should govern all of these issues. It is important to
note that there are also different types of tort –
negligence, nuisance, defamation, etc.

 This then begs the question, should the same rule in

determining the applicable laws apply regardless of the
type of tort? An additional issue to consider is that
application of a foreign law may lead to liability being
imposed for torts that are unknown in the domestic
jurisdiction.
 There are three main theories in relation to
choice of law in cross border tort cases –

 The lex fori,

 The lex loci delicti, and
 The proper law or social environment theory.
 THE LEX FORI THEORY

 According to this approach the applicable is

the law of the forum where the claim has
been brought. The application of lex fori is
rather simplistic and straightforward as there
is no need to determine where the tortious
activity occurred, or to prove that it was in
fact a tort in the law of the country where
the act occurred.
 On the other hand this could work to the
disadvantage of the defendant as the
plaintiff could then indulge in forum
shopping – choosing a forum that is most
favourable to him. The defendant may
become liable for an act, which may amount
to a tort in the forum state – lex fori – but
not in the place where it was committed
– lex loci delicti.
 Contrarily, if the act committed is not a tort
under lex fori, but it is under ­lex loci delicti
– the plaintiff does not suffer as even if he
cannot successfully bring a claim in the
forum state, he can bring it in the place
where the act has been committed.
 Savigny an advocate of the lex fori method
proposed that tortious liability is comparable
to criminal liability and thus is closely
related to the public policy of the forum
state and therefore should be governed
by lex fori.
 A plaintiff’s claim is derived from the law of
the jurisdiction where the injury occurred
and depends entirely upon such law for its
existence. Thus, when the place where the
act commenced or the place where the
effect of the injury was felt is two different
states, the substantive law of the state
where the injury occurs applies.
 There are barely any proponents of the
application of the lex fori theory in the
contemporary world as even with its
simplicity, if it were applied as a general
rule, it would result in arbitrariness and
unfair decisions. Thus in a quest for a more
fair basis for choice of law, we move to
the lex loci delicti theory.
THE LEX LOCI DELICTI THEORY
 In accordance to this theory the applicable
law in the case of a cross border tort ought
to be the law of the place where the tortious
act has been committed.
 Westlake has also opined on the matter that
in the event of tortious act that disrupts the
social order of any country, it is the law of
that country where the act has been
committed that must then apply as it would
be the best authority of the matter.
ISSUE WITH THIS THEORY
 The problem with the lex loci regime arises
when the facts amounting to the tortious act
take place in more than one country, i.e. the
act is committed in one country and the
injury is felt in another.

 It then becomes hard to decide which

country is then the loci delicti – the place
where the act commenced or the place
where the effect of the injury was felt
 Additionally there can also be problems in
applying this theory when the parties have
almost no connection to the place where the
tort occurred, i.e. the lex loci delicti may be
entirely coincidental and by chance.
 For example a couple living in state X are on
vacation in state Y, there is an accident while
they are driving in state Y and the wife is
injured. She wants to sue her husband. The
application of the laws of state Y in such a
case would merely be by chance and in the
event that the laws of state Y do not support
her claim (but state X’s laws do) this would
be highly unfair and application of state Y’s
laws will be arbitrary.
 The real problem with the lex loci
delicti theory is not that is inherently unfair
and arbitrary, but that it is not flexible and
cannot address every single question in
complex situations.

 The possibility of unfairness only arises in

complex situations, like in the instance of
the lex loci delicti being entirely fortuitous.
 In order to deal with this inefficiency of
the lex loci delicti theory there was a move
towards creating a “proper law,” which is
based on “the most significant connection
with the chain of acts and circumstances in
the particular case in question.”
 THE PROPER LAW OR SOCIAL
ENVIRONMENT THEORY
 In accordance to this approach the
applicable law must be the one that has the
most significant connection with the facts
and circumstances in a particular
claim/case.
 Lord Denning reiterated this position to a
certain extent in the case of Boys v.
Chaplin, where he said that a proper law of
tort ought to be determined by establishing
which law has the most significant
connection to both the parties as well as the
act done.

 The proper law theory seeks to fill the gaps

in the lex loci delicti theory.
 In the words of Morris, “a proper law
approach, intelligently applied, would
furnish a much-needed flexibility” in the
process of choice of law.
FOREING TORTS
1. Tort of Realty
 Whenever any tort is committed against a
property which is situated in a foreign
country, the tort is called tort of reality. In
such torts, the affected property is an
immovable property which means that such
property is fixed at one place and it cannot
be moved from its position.
 Under the English law of torts, no action can
arise in a case where any tort relating to
immovable property is committed and thus in
such cases, the suit filed by the plaintiff is
rejected by the courts.
 Illustration: A is resident of England who
visits India on a business trip and while
staying in India, he commits a tort of
trespass on B’s House. Here even though a
tort has been committed but since it has
been committed against an immovable
property which is situated in a foreign
country it is a tort of reality and such a case
against A will not be maintainable.
 In the case of Britten South Africa Co. v.
Compania de Mecambique (1953) AC 602,
the defendant was a resident of England and
he had trespassed into the mine of the
plaintiff which was situated in South Africa
as a result, the plaintiff brought a suit
against him in the Court for trespass. It was
held that, since the tort was committed
against an immovable property in a foreign
land, the suit of the plaintiff cannot be
successful and therefore the defendant was
not held guilty.
 2. Personal Torts

 In foreign torts, whenever there is an unlawful

act committed against a person or against his
movable property, such tort is known as
personal torts. Unlike tort of reality, in cases of
personal torts, the person who suffers a loss
has the right to file the suit against the
tortfeasor and such person’s suit is not rejected
by the Courts. Thus for movable property and
the body, personal torts are applied and
remedy is available to the injured person.
 Illustration: K, a resident of China, while on
an internship programme in Singapore was
assaulted by B. Here, since the tort was
committed against the body of K, it will be a
personal tort and the suit filed by K will be
accepted by the Court and B will be held
liable.
 So, personal torts are separate from the tort
of reality because while in the tort of reality,
there is no right to file a claim against the
wrongdoer, under personal tort a person can
file a suit for the injury or loss caused by a
tortfeasor.
 But all the suits under Personal torts cannot
be accepted by the Courts and therefore only
on the fulfilment of certain conditions, a suit
for a personal tort which has been
committed abroad can be accepted by the
court.
ESSENTIAL INGREDIENTS OF A
FOREIGN TORT:
In order that an action should be for a tort
committed out of England, the following
conditions must be fulfilled :

 (i) The act complained of must be unlawful

in the place where it was committed. It is
not necessary that the wrong should have
been actionable when committed. It is
sufficient if it was unlawful.
(ii) act complained of must be of a kind which
would have been actionable had it been done
in England. The law which will be applied is
the law of England and not the law of the
place where the tort was committed.

(iii) The act complained of must not be tort of

purely local nature, such as trespass or
ouster from land, or a nuisance affecting
hereditament.The
 The first condition which has to be fulfilled in
a case of personal tort to be successful is that
the tortious act which is committed by the
defendant against the body or the property of
the plaintiff is actionable in the country in
which this act has been committed. For e.g.,
If a tort is committed against A’s body and he
files a claim for damages. The Court will first
see whether a suit can be filed in the court of
the country where such an act was committed
or not. If such an act is not actionable then
the suit filed by A will be rejected.
 In cases where an unlawful act is a civil wrong in one country and a
criminal offence in another country, the position of law was not clear.
In the case of Machado v. Fontes (1892) 2 Q.B.D. 231, it was held
that a civil claim can be made even if the country where the act is
committed regards it as a criminal offence.

 But this decision was overruled in the case of Boys v. Chaplin (1969)
2 All. E.R. 1085, and now the current position of law is that the act
must be actionable in both the countries i.e., the country where the
tort was committed and the country where the suit is filed. In this
case, the plaintiff and the defendant got into an accident because of
the negligent driving of the defendant. Both of them were British
residents and the accident occurred in Malta. As per the law in Malta,
damages for the pain, suffering and agony were not awarded and only
monetary compensation for the loss suffered was given to the
plaintiff but under the British law, these factors were also relevant in
the award of damages. It was held that British law will apply in the
case and the damages would be assessed as per the British law.
  The act for which a suit is filed should be
actionable if it had been committed in the
country where the case was filed.
 This is the second condition which must be
fulfilled for a successful claim in cases of
personal tort. If the country in which the
plaintiff wants to enforce his rights does not
provide such right or it does not consider
that act to be unlawful, then in such a case
if the Court allows the claim of the plaintiff
it will amount to enforcing the laws of other
nation and that situation cannot be allowed.
 For e.g., If trespass to movable property is
an offence in country X but that is not an
offence in country Y. A who is from Y wants
to file a case in a court of Y for trespass to
movable property. The court will not allow
such a claim because it is not an offence in Y
and thus there is no actionable claim in Y for
such acts.
 One of the primary challenges with foreign
torts is determining which jurisdiction’s laws
apply. This can depend on several factors,
including where the tort was committed,
where the victim resides, and where the
defendant is located. In some cases, the laws
of multiple jurisdictions may apply, which
can make it difficult to determine which
court has jurisdiction over the case.
 Another challenge with foreign torts is
enforcing judgments across borders. In many
cases, a judgment obtained in one country
may not be recognized or enforceable in
another country. This can make it difficult
for victims to obtain compensation for their
injuries or damages.
 To address these challenges, many countries
have entered into treaties and conventions
to govern the resolution of foreign tort
claims.
--- For example, the Hague Convention on the
Law Applicable to Traffic Accidents
establishes rules for determining which
country’s laws apply in cases involving traffic
accidents that occur in a foreign country.
 CONCLUSION
 In conclusion as far as choice of law in the
matter of cross border torts is concerned,
the real problem is not really what theory to
apply – lex fori, lex loci delicti, or proper
law – but how to apply the theory in such a
way that it provide certainty and is still
flexible enough to accommodate complex
cases.
 As far as India is concerned, our courts are
yet to develop a concrete position on the
matter. It would be advantageous if they
could evolve a rule independent from those
already in place, by adopting the best of
both Civil and Common law, i.e. a flexible
version of lex loci delicti akin to the proper
law or social environment theory.