|
Introduction
Law is any rule of human conduct accepted by the society and
enforced by the state for the betterment of human life. In a wider
sense it includes any rule of human action for example, religious,
social, political and moral rules of conduct. However only those
rules of conduct of persons which are protected and enforced by
the state do really constitute the law of the land in its strict
sense. According to Salmond the law consists
of rules recognized and acted on by courts of justice. The entire body of law in a
state (corpus juris) may be divided into two, viz, civil and
criminal.
Civil law: The term may be
used in two senses. In one sense it indicates the law of a
particular state as distinct from its external law such as
international law. On the other side, in a restricted sense civil
law indicates the proceedings before civil courts where civil
liability of individuals for wrongs committed by them and other
disputes of a civil nature among them are adjudicated upon and
decided. Civil wrong is the one which gives rise to civil
proceedings, i.e., proceedings which have for their purpose the
enforcement of some right claimed by the plaintiff as against the
defendant. For example, an action for the recovery of debt,
restitution of property, specific performance of a contract etc.
he who proceeds civilly is a claimant or plaintiff demanding the
enforcement of some right vested in him and the remedy he seeks is
compensatory or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the
criminal courts where the criminal liability of persons who have
committed wrongs against the state and other prohibited acts are
determined. Criminal proceedings on the other hand are those which
have for their object the punishment of the wrong doer for some
act of which he is accused. He who proceeds criminally is an
accuser or prosecutor demanding nothing for him but merely the
punishment of the accused for the offence committed by him.
Definition Of Tort
The term tort is the French equivalent of the English word ‘wrong’
and of the Roman law term ‘delict’. The word tort is derived
from the Latin word tortum which means twisted or crooked or wrong
and is in contrast to the word rectum which means
straight.
Everyone is expected to behave in a straightforward manner and
when one deviates from this straight path into crooked ways he has
committed a tort. Hence tort is a conduct which is twisted or
crooked and not straight. As a technical term of English law, tort
has acquired a special meaning as a species of civil injury or
wrong. It was introduced into the English law by the Norman
jurists.
Tort now means a breach of
some duty independent of contract giving rise to a civil cause of
action and for which compensation is recoverable. In spite of
various attempts an entirely satisfactory definition of tort still
awaits its master. In general terms, a tort may be defined as a
civil wrong independent of contract for which the appropriate
remedy is an action for unliquidated damages. Some other
definitions for tort are given below:
Winfield and Jolowicz-
Tortuous liability arises from the breach of a duty primarily
fixed by law; this duty is towards persons generally and its
breach is redressible by an action for unliquidated damages.
Salmond and Hueston- A tort
is a civil wrong for which the remedy is a common action for unliquidated
damages, and which is not exclusively the breach of a contract or
the breach of a trust or other mere equitable obligation.
Sir Frederick Pollock- Every
tort is an act or omission (not being merely the breach of a duty
arising out of a personal relation, or undertaken by contract)
which is related in one of the following ways to harm (including
reference with an absolute right, whether there be measurable
actual damage or not), suffered by a determinate person:-
a) It may be an act which,
without lawful justification or excuse, is intended by the agent
to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of
specific legal duty, which causes harm not intended by the person
so acting or omitting.
c) It may be an act violation the absolute right (especially
rights of possession or property), and treated as wrongful without
regard to the actor’s intention or knowledge. This, as we have
seen is an artificial extension of the general conceptions which
are common to English and Roman law.
d) It may be an act or omission causing harm which the person so
acting or omitting to act did not intend to cause, but might and
should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or
preventing harm which the party was bound absolutely or within
limits, to avoid or prevent.
The
Law Of Torts In India
Under the Hindu law and the Muslim law tort had a much narrower
conception than the tort of the English law. The punishment of
crimes in these systems occupied a more prominent place than
compensation for wrongs. The law of torts in India is mainly the
English law of torts which itself is based on the principles of
the common law of England. This was made suitable to the Indian
conditions appeasing to the principles of justice, equity and good
conscience and as amended by the Acts of the legislature. Its
origin is linked with the establishment of British courts in
India.
The expression
justice, equity and good conscience
was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian
society and circumstances. The Indian courts before applying any
rule of English law can see whether it is suited to the Indian
society and circumstances. The application of the English law in
India has therefore been a selective application. On this the
Privy Council has observed that the ability
of the common law to adapt itself to the differing circumstances
of the countries where it has taken roots is not a weakness but
one of its strengths.
Further, in applying the English law on a particular point, the
Indian courts are not restricted to common law. If the new rules
of English statute law replacing or modifying the common law are
more in consonance with justice, equity and good conscience, it is
open o the courts in India to reject the outmoded rules of common
law and to apply the new rules. For example, the principles of
English statute, the Law Reform (Contributory Negligence) Act,
1945, have been applied in India although there is still no
corresponding Act enacted by Parliament in India.
The development in Indian law
need not be on the same lines as in England. In M.C. Mehta v.
Union of India , Justice Bhagwati said, we have to evolve new
principles and lay down new norms which will adequately deal with
new problems which arise in a highly industrialized economy. We
cannot allow our judicial thinking to be constructed by reference
to the law as it prevails in England or for the matter of that in
any foreign country. We are certainly prepared to receive light
from whatever source it comes but we have to build our own
jurisprudence.
It has also been held that
section 9 of The Code of Civil Procedure, which enables the civil
court to try all suits of a civil nature, impliedly confers
jurisdiction to apply the Law of Torts as principles of justice,
equity and good conscience. Thus the court can draw upon its
inherent powers under section 9 for developing this field of
liability.
In a more recent judgement of
Jay Laxmi Salt Works (p) ltd. v.
State of Gujarat , Sahai, J., observed: truly speaking the entire
law of torts is founded and structured on morality. Therefore, it
would be primitive to close strictly or close finally the ever
expanding and growing horizon of tortuous liability. Even for
social development, orderly growth of the society and cultural refineness the liberal approach to tortious
liability by court would be conducive.
Nature Of Torts
A. Tort and crime
Historically tort had its roots in criminal procedure. Even today
there is a punitive element in some aspects of the rules on
damages. However tort is a species if civil injury or wrong. The
distinction between civil and criminal wrongs depends on the
nature of the remedy provided by law. A civil wrong is one which
gives rise to civil proceedings. A civil proceeding concerns with
the enforcement of some right claimed by the plaintiff as against
the defendant whereas criminal proceedings have for their object
the punishment of the defendant for some act of which he is
accused. Sometimes the same wrong is capable of being made the
subject of proceedings of both kinds. For example assault, libel,
theft, malicious injury to property etc. in such cases the wrong
doer may be punished criminally and also compelled in a civil
action to make compensation or restitution.
Not every civil wrong is a tort. A civil wrong may be labeled as a
tort only where the appropriate remedy for it is an action for
unliquidated damages. Thus for example, public nuisance is not a
tort merely because the civil remedy of injunction may be
available at the suit of the attorney general, but only in those
exceptional cases in which a private person may recover damages
for loss sustained by him in consequence thereof. However it has
to be born in mind that a person is liable in tort irrespective of
whether or not an action for damages has been given against him.
The party is liable from the moment he commits the tort. Although
an action fro damages is an essential mark of tort and its
characteristic remedy, there may be and often other remedies also.
A.1. Difference between crime
and tort
Being a civil injury, tort differs from crime in all respects in
which a civil remedy differs from a criminal one. There are
certain essential marks of difference between crime and tort they
are:
# Tort is an infringement or privation of private or civil rights belongigng to individuals, whereas crime is a breach of public
rights and duties which affect the whole community.
# In tort the wrong doer has to compensate the injured party
whereas in crime, he is punished by the state in the interest of
the society.
# In tort the action is brought about by the injured party whereas
in crime the proceedings are conducted in the name of the state.
# In tort damages are paid for compensating the injured and in
crime it is paid out of the fine which is paid as a part of
punishment. Thus the primary purpose of awrding compensation in a
criminal prosecution is punitive rather than compensatory.
# The damages in tort are unliquidated and in crime they are
liquidated.
A.2. Resemblance between crime
and tort
There is however a similarity between tort and crime at a primary
level. In criminal law the primary duty, not to commit an offence,
for example murder, like any primary duty in tort is in rem and is
imposed by law. The same set of circumstances will in fact, from
one point of view, constitute a crime and, from another point of
view, a tort. For example every man has the right that his bodily
safety shall be respected. Hence in an assault, the sufferer is
entitled to get damages. Also, the act of assault is a menace to
the society and hence will be punished by the state. However where
the same wrong is both a crime and a tort its two aspects are not
identical. Firstly, its definition as a crime and a tort may
differ and secondly, the defences available for both crime and
tort may differ.
The wrong doer may be ordered
in a civil action to pay compensation and be also punished
criminally by imprisonment or fine. If a person publishes a
defamatory article about another in a newspaper, both a criminal
prosecution for libel as well as a civil action claiming damages
for the defamatory publication may be taken against him. In
P.Rathinam. v. Union of India, the Supreme Court observed,
In a way there is no distinction between
crime and a tort, inasmuch as a tort harms an individual whereas a
crime is supposed to harm a society. But then, a society is made
of individuals. Harm to an individual is ultimately the harm to
the society.
There was a common law rule
that when the tort was also a felony, the offender would not be
sued in tort unless he has been prosecuted in felony, or else a
reasonable excuse had to be shown for his non prosecution. This
rule has not been followed in India and has been abolished in
England.
B.Tort and contract
The definition given by P.H. Winfield clearly brings about the
distinction between tort and contract. It says,
Tortuous
liability arises from the breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach is redressible by an action for unliquidated
damages. A contract is
that species of agreement whereby a legal obligation is
constituted and defined between the parties to it. It is a legal
relationship, the nature, content and consequence of which are
determined and defined by the agreement between the parties.
According to Salmond, a contract arises out of the exercise of
the autonomous legislative authority entrusted by the law to
private persons to declare and define the nature of mutual rights
and obligations.
At the present day, tort and
contract are distinguished from one another in that, the duties in
the former are primarily fixed by law while in the latter they are
fixed by the parties themselves. Agreement is the basis for all
contractual obligations. “People cannot create tortious liability
by agreement. Thus I am under a duty not to assault you, not to
slander you, not to trespass upon your land because the law says
that I am under such duty and not because I have agreed with you
to undertake such duty.
Some of the distinctions
between tort and contract are given below:
# A tort is inflicted against or without consent; a contract is
founded upon consent.
# In tort no privity is
needed, but it is necessarily implied in a contract.
# A tort is a violation in rem
(right vested in some person and available against the world at
large.); a breach of contract is an infringement of a right in
personam( right available against some determinate person or
body).
# Motive is often taken into
consideration in tort, but it is immaterial in a breach of
contract.
# In tort the measure of
damages is not strictly limited nor is it capable of being
indicated with precision; in a breach of contract the measure of
damages is generally more or less nearly determined by the
stipulations of the parties.
In certain cases the same
incident may give rise to liability both in contract and in tort.
For example, when a passenger whilst traveling with a ticket is
injured owing to the negligence of the railway company, the
company is liable for a wrong which is both a tort and a breach of
a contract.
The contractual duty may be
owed to one person and the duty independent of that contract to
another. The surgeon who is called by a father to operate his
daughter owes a contractual duty to the father to take care. If he
fails in that duty he is also liable for a tort against the
daughter. In Austin v. G.W. Railway, a woman and her child were
traveling in the defendant’s train and the child was injured by
defendant’s negligence. The child was held entitled to recover
damages, for it had been accepted as passenger.
There is a well established
doctrine of Privity of Contract under which no one except the
parties to it can sue for a breach of it. Formerly it was thought
that this principle of law of contract also prevented any action
being brought under tortuous liability. But this fallacy was
exploded by the House of Lords in the celebrated case of
Donoghue
v. Stevenson. In that case a manufacturer of ginger beer had sold
to a retailer, ginger beer in a bottle of dark glass. The bottle,
unknown to anyone, contained the decomposed remains of a snail
which had found its way to the bottle at the factory. X purchased
the bottle from the retailer and treated the plaintiff, a lady
friend (the ultimate consumer), to its contents. In consequence
partly of what she saw and partly of what she had drunk, she
became very ill. She sued the manufacturer for negligence. This
was, of course, no contractual duty on the part of the
manufacturer towards her, but a majority of the House of Lords
held that he owed a duty to take care that the bottle did not
contain noxious matter and that he was liable if that duty was
broken.
The judicial committee of the
Privy Council affirmed the principle of Donoghue’s case in
Grant
v. Australian Knitting Mills Ltd. Thus contractual liability is
completely irrelevant to the existence of liability in tort. The
same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the
nature of damages under each. In contracts the plaintiff will be
claiming liquidated damages whereas in torts he will be claiming
unliquidated damages. When a person has filed a suit or put a
claim for the recovery of a predetermined and fixed sum of money
he is said to have claimed liquidated damages. On the other hand
when he has filed a suit for the realization of such amount as the
court in its discretion may award, he is deemed to have claimed
unliquidated damages.
C. Tort and Quasi-Contract
Quasi contract cover those situations where a person is held
liable to another without any agreement, for money or benefit
received by him to which the other person is better entitled.
According to the Orthodox view the judicial basis for the
obligation under a quasi contract is the existence of a
hypothetical contract which is implied by law. But the Radical
view is that the obligation in a quasi contract is sui generis and
its basis is prevention of unjust enrichment.
Quasi contract differs from
tort in that:
# There is no duty owed to persons for the duty to repay money or
benefit received unlike tort, where there is a duty imposed.
# In quasi contract the damages recoverable are liquidated
damages, and not unliquidated damages as in tort.
Quasi contracts resembles tort
and differs from contracts in one aspect. The obligation in quasi
contract and in tort is imposed by law and not under any
agreement. In yet another dimension quasi contract differs from
both tort and contract. If, for example, A pays a sum of money by
mistake to B. in Quasi contract, B is under no duty not to accept
the money and there is only a secondary duty to return it. While
in both tort and contract, there is a primary duty the breach of
which gives rise to remedial duty to pay compensation.
Constituents Of Tort.
The law of torts is fashioned as an instrument for making people
adhere to the standards of reasonable behaviour and respect the
rights and interests of one another. This it does by
protecting interests and by providing for situations when a person
whose protected interest is violated can recover compensation for
the loss suffered by him from the person who has violated the
same. By interest here is meant
a claim, want or desire of a human being
or group of human beings seeks to satisfy, and of which, therefore
the ordering of human relations in civilized society must take
account. It is however, obvious that every want or desire of a
person cannot be protected nor can a person claim that whenever he
suffers loss he should be compensated by the person who is the
author of the loss. The law, therefore, determines what interests
need protection and it also holds the balance when there is a
conflict of protected interests.
Every wrongful act is not a
tort. To constitute a tort,
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a
legal remedy and
# Such legal remedy must be in the form of an action for unliquidated damages.
I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if
it invades the legal right of another person. In Rogers v.
Ranjendro Dutt , the court held that, the
act complained of should, under the circumstances, be legally
wrongful, as regards the party complaining. That is, it must
prejudicially affect him in some legal right; merely that it will
however directly, do him harm in his interest is not enough.
A legal right, as defined by
Austin, is a faculty which resides in a determinate party or
parties by virtue of a given law, and which avails against a party
(or parties or answers to a duty lying on a party or parties)
other than the party or parties in whom it resides. Rights
available against the world at large are very numerous. They may
be divided again into public rights and private rights. To every
right, corresponds a legal duty or obligation. This obligation
consists in performing some act or refraining from performing an
act.
Liability for tort arises,
therefore when the wrongful act complained of amounts either to an
infringement of a legal private right or a breach or violation of
a legal duty.
II. Damage
In general, a tort consists of some act done by a person who
causes injury to another, for which damages are claimed by the
latter against the former. In this connection we must have a clear
notion with regard to the words damage and damages. The word
damage is used in the ordinary sense of injury or loss or
deprivation of some kind, whereas damages mean the compensation
claimed by the injured party and awarded by the court. Damages are
claimed and awarded by the court to the parties. The word injury
is strictly limited to an actionable wrong, while damage means
loss or harm occurring in fact, whether actionable as an injury or
not.
The real significance of a
legal damage is illustrated by two maxims, namely, Damnum Sine
Injuria and Injuria Sine Damno.
(i) Damnum Sine Injuria
(Damage Without Injury)
There are many acts which though harmful are not wrongful and give
no right of action to him who suffers from their effects. Damage
so done and suffered is called Damnum Sine Injuria or damage
without injury. Damage without breach of a legal right will not
constitute a tort. They are instances of damage suffered from
justifiable acts. An act or omission committed with lawful
justification or excuse will not be a cause of action though it
results in harm to another as a combination in furtherance of
trade interest or lawful user of one’s own premises. In Gloucester
Grammar School Master Case , it had been held that the plaintiff
school master had no right to complain of the opening of a new
school. The damage suffered was mere damnum absque injuria or
damage without injury. Acton v. Blundell , in which a mill owner
drained off underground water running into the plaintiff’s well,
fully illustrate that no action lies fro mere damage, however
substantial, caused without the violation of some right.
There are moral wrongs for
which the law gives no remedy, though they cause great loss or
detriment. Los or detriment is not a good ground of action unless
it is the result of a species of wrong of which the law takes no
cognizance.
(ii) Injuria Sine Damno (
injury without damage)
This means an infringement of a legal private right without any
actual loss or damage. In such a case the person whose right has
been infringed has a good cause of action. It is not necessary for
him to prove any special damage because every injury imports a
damage when a man in hindered of his right. Every person has an
absolute right to property, to the immunity of his person, and to
his liberty, and an infringement of this right is actionable per
se. actual perceptible damage is not, therefore, essential as the
foundation of an action. It is sufficient to show the violation of
a right in which case the law will presume damage. Thus in cases
of assault, battery, false imprisonment, libel, trespass on land,
etc., the mere wrongful act is actionable without proof of special
damage. The court is bound to award to the plaintiff at least
nominal damages if no actual damage is proved. This principle was
firmly established by the election case of Ashby v. White, in
which the plaintiff was wrongfully prevented from exercising his
vote by the defendants, returning officers in parliamentary
election. The candidate fro whom the plaintiff wanted to give his
vote had come out successful in the election. Still the plaintiff
brought an action claiming damages against the defendants for
maliciously preventing him from exercising his statutory right of
voting in that election. The plaintiff was allowed damages by Lord
Holt saying that there was the infringement of a legal right
vested in the plaintiff.
III. Remedy
The law of torts is said to be a development of the maxim ‘ubi jus
ibi remedium’ or ‘there is no wrong without a remedy’. If a man
has a right, he must of necessity have a means to vindicate and
maintain it and a remedy if he is injured in the exercise or
enjoyment of it; and indeed it is a vain thing to imagine a right
without remedy; want of right and want of remedy are reciprocal.
Where there is no legal remedy
there is no wrong. But even so the absence of a remedy is evidence
but is not conclusive that no right exists.
Some
General Conditions In Torts
1. Act And Omission- To constitute a tort there must be a wrongful
act, whether of omission or commission, but not such acts as are
beyond human control and as are entertained only in thoughts. An
omission is generally not actionable but it is so exceptionally.
Where there is a duty to act an omission may create liability. A
failure to rescue a drowning child is not actionable, but it is so
where the child is one’s own. A person who voluntarily commences
rescue cannot leave it half the way. A person may be under duty to
control natural happenings to his own land so as to prevent them
from encroaching others’ land.
2. Voluntary and Involuntary
Acts- a voluntary act has to be distinguished from an involuntary
act because the former may involve liability and the latter may
not. A self willed act like an encroachment fro business, is
voluntary, but an encroachment for survival may be involuntary.
The wrongfulness of the act and the liability for it depends upon
legal appreciation of the surrounding circumstances.
3. Malice- malice is not
essential to the maintenance of an action for tort. It is of two
kinds, ‘express malice’ (or malice in fact or actual malice) and
‘malice in law’ (or implied malice). The first is what is called
malice in common acceptance and means ill will against a person;
the second means a wrongful act done intentionally without just
cause or excuse. Where a man has a right to do an act, it is not
possible to make his exercise of such right actionable by alleging
or proving that his motive in the exercise was spite or malice in
the popular sense. An act, not otherwise unlawful, cannot
generally be made actionable by an averment that it was done with
evil motive. A malicious motive per se does not amount to injuria
or legal wrong.
Wrongful acts of which malice
is an essential element are:
# Defamation,
# Malicious prosecution,
# Willful and malicious damage to property,
# Maintenance, and
# Slander of title.
4. Intention, motive,
negligence and recklessness- The obligation to make reparation for
damage caused by a wrongful act arises from the fault and not from
the intention. Any invasion of the civil rights of another person
is in itself a legal wrong, carrying with it liability to repair
it necessary or natural consequences, in so far as these are
injurious to the person whose right is infringed, whether the
motive which prompted it be good, bad or indifferent. A thing
which is not a legal injury or wrong is not made actionable by
being done with a bad intent. It is no defence to an action in
tort for the wrong doer to plead that he did not intend to cause
damage, if damage has resulted owing to an act or omission on his
part which is actively or passively the effect of his volition. A
want of knowledge of the illegality of his act or omission affords
no excuse, except where fraud or malice is the essence of that act
or omission. For every man is presumed to intend and to know the
natural and ordinary consequences of his acts. This presumption is
not rebutted merely by proof that he did not think of the
consequences or hoped or expected that they would not follow. The
defendant will be liable for the natural and necessary
consequences of his act, whether he in fact contemplated them or
not.
5. Malfeasance, misfeasance
and nonfeasance- the term ‘malfeasance’ applies to the commission
of an unlawful act. It is generally applicable to those unlawful
acts, such as trespass, which are actionable per se and do not
require proof of negligence or malice. The term ‘misfeasance’ is
applicable to improper performance of some lawful act. The term
‘non-feasance’ applies to the failure or omission to perform some
act which there is an obligation to perform.
6. Fault-
liability for tort generally depends upon something done
by a man which can be regarded as a fault fro the reason that it
violates another man’s right. But liability may also arise without
fault. Such liability is known as absolute or strict liability. An
important example is the rule in Rylands v. Fletcher
thus the two
extremes of the law of tort are of non liability even where there
is fault or liability without fault. Between these two extremes is
the variety of intentional and negligent wrongs to the question
whether there is any consistent theory of liability, all that can
be said is that it wholly depends upon flexible public policy,
which in turn is a reflection of the compelling social needs of
the time.
General Principles Of Liability
There are two theories with regard to the basic principle of
liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to
another are torts, unless there is some justification recognized
by law.
# Pigeon-hole theory- there is
a definite number of torts outside which liability in tort does
not exist.
The first theory was propounded by Professor Winfield. According
to this, if I injure my neighbour, he can sue me in tort, whether
the wrong happens to have a particular name like assault, battery,
deceit or slander, and I will be liable if I cannot prove lawful
justification. This leads to the wider principle that all
unjustifiable harms are tortious. This enables the courts to
create new torts and make defendants liable irrespective of any
defect in the pleading of the plaintiff. This theory resembles the
saying, my duty is to hurt nobody by word or deed. This theory
is supported by Pollock and courts have repeatedly extended the
domain of the law of torts. For example, negligence became a new
specific tort only by the 19th century AD. Similarly the rule of
strict liability for the escape of noxious things from one’s
premises was laid down in 1868 in the leading case if
Rylands v.
Fletcher.
The second theory was proposed
by Salmond. It resembles the Ten Commandments given to Moses in
the bible. According to this theory, I can injure my neighbour as
much as I like without fear of his suing me in tort provided my
conduct does not fall under the rubric of assault, deceit, slander
or any other nominate tort. The law of tort consists of a neat set
of pigeon holes, each containing a labeled tort. If the
defendant’s wrong does not fit any of these pigeon holes he has
not committed any tort.
The advocates of the first theory argue that decisions such as
Donoghue v. Stevenson shows that the law of tort is steadily
expanding and that the idea of its being cribbed, cabined and
confined in a set of pigeon holes in untenable. However salmond
argues in favour of his theory that just as criminal law consists
of a body of rules establishing specific offences, so the law of
torts consists of a body of rules establishing specific injuries.
Neither in the one case nor in the other is there any general
principle of liability. Whether I am prosecuted fro an alleged
offence or sued fro an alleged tort it is for my adversary to
prove that the case falls within some specific and established
rule of liability and not fro for me to defend myself by proving
that it is within some specific and established rule of
justification or excuse. For salmond the law must be called The
Law of Torts rather that The Law of Tort.
There is, however, no
recognition of either theory. It would seem more realistic fro the
student to approach the tortious liability from a middle ground.
In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji , it
was pointed out that there is nothing like an exhaustive
classification of torts beyond which courts should not proceed,
that new invasion of rights devised by human ingenuity might give
rise to new classes of torts. On the whole if we are asked to
express our preference between the two theories, in the light of
recent decisions of competent courts we will have to choose the
first theory of liability that the subsequent one. Thus it is a
matter of interpretation of courts so as to select between the two
theories. The law of torts has in the main been developed by
courts proceeding from the simple problems of primitive society to
those of our present complex civilization.
Conclusion
Thus to conclude, law of torts is a branch of law which resembles
most of the other branches in certain aspects, but is essentially
different from them in other respects. Although there are
differences in opinion among the different jurists regarding the
liability in torts, the law has been developed and has made firm
roots in the legal showground. There are well defined elements and
conditions of liability in tort law.
This bough of law enables the
citizens of a state to claim redressal for the minor or major
damage caused to them. Thus the law has gained much confidence
among the laymen.
|
Nature
And Scope Of Law Of Torts
More
Articles:
The
author can be reached at: lakshmisomanathan@legalserviceindia.com /
