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Foundation Of Torts Law In Britain And India

The law of torts or civil wrongs in India is thus almost wholly the English law which is administered as rules of justice, equity and good conscience. The Indian courts, however, before applying any rule of English law can see whether it is suited to the Indian society and circumstances.

Tort as we know today has evolved over the centuries and has grown tremendously in countries such as the Rome, England, United States of America, and other progressive countries and to a certain extent in India. The main study in this assignment however would revolve around the origin and evolution of law of torts in India. Before moving on to the core subject it would be essential to fully understand the meaning of the term tort in the Indian context. In this assignment I may try to explain evolution of law of torts in India.

The term Tort is French word equivalent of the English word wrong, in German unlawful acts’ and of the Roman law term delict and quasi-délits. The tort law of France (délit) is entirely codified, and Article 1382 of Civil Code of France simply states that:

[a]ny act whatever of man, which causes damage to another, obliges the one by whose fault it occurred to compensate it. The word tort’ is derived from the Latin term tortum to twist, and implies conduct which is twisted or tortuous. Tort, thus represents that conduct which is not ordinary but one which deviates from normal or the prescribed. A tort is a kind of wrong one commits against another person. It occurs when a person does something which s/he is not supposed to do or conducts oneself in a manner which harms others.

The law of torts provides for pecuniary compensation for injuries to person and property recoverable by the process of law. Swayed by the notion of security, it co-relates wrongful act to the harm which it causes, and exhibits different scales of evaluation at different levels for some kinds of harm call for liability independent of one's fault while other kinds create liability only for intentional or negligent wrong- doing. Ordinarily, it tries to shift the loss from the 'victim' to the person who inflicted it on him, but at times, it looks to a third party to shoulder liability, like social insurance for wrongs which are inevitable incidents of modern social living like accidents on roads and in industrial establishments.

Hence, tort is a civil wrong which causes claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

Do we experience Tort in everyday lives?

Fortunately (or unfortunately depending on one’s point of view), we do not live in isolation but our fellow beings. So that we may live together in peace in the society impose certain rules. It is duty towards others that we observe such rules.

At the same time we can expect the others that they shall also follow their own duties. Their exists in other words a kind of chain where each of us owes a duty to another at the same time we have the right to expect that other will follow their duties e.g. if both of us live as neighbours, it is my right and your duty that if you come to my house you knock the door and take my permission before you help yourself at the fridge. Similarly, if I come to your house it is my duty and your right that I ring the bell as I come and ask you before I help myself to the cookie jar on cupboard. If either of us does not follow this right’ conduct we do a wrong’ against the other, in other words we commit a tort.

Tort differs from crime as it is redressed by compensation or damages and not by punishment or fine though the same wrong may be a tort as well as a crime concurrently. Tort differs from breach of contract as the rights and duties arise, in case of contract, from the agreement and are enforceable against the parties concerned. Breach of contract may be redressed by liquidated damages. Tort, on the other hand, arises from a duty imposed on persons in general and is redressible by a suit for unliquidated damages.

Founding Roots of Tort Law in Britain:

Prior to the French William the Conqueror’s 1066 Norman conquest of England, the legal system was somewhat haphazard, conducted on a more-or-less case-by-case basis. After 1066, eminent judges were delegated to travel about a given region in order to absorb those village laws which had developed over two centuries. Benefiting by this information, these judges noted and implemented precepts they deemed most fair-minded into their own court findings. In time, when referred to often enough, these cases became what are now called legal precedents.

Sessions during which these judges conducted trials were dubbed "assizes", or in modern terms, sittings". Even now, the place from which a judge renders verdicts and sentences is called the bench. Once established, these precedents were meant to be applied equally to every member of society, from a lord to a serf, bringing about the term common law.

Conflict between King Henry II and Archbishop Thomas:

According to Becket in 1166, a century after the Norman Conquest, William the Conqueror’s great- grandson Henry II instituted a statute, according to which a jury of twelve men in each county would be appointed to decide whether an alleged crime had been committed, and then the type and extent of that defendant’s sentence. Then, as the common law solidified into concrete strictures, defendants sought a less ironclad avenue. One way to circumvent the perceived harshness of common law courts was to become, in name at least, a member of the clergy. This method fostered the term "benefit of clergy". Those eligible for its protection could be tried by the Ecclesiastical courts, known to offer a softer, more humane framework.

Not surprisingly, this accelerated the urge to join the clergy, especially when this could be done by any man who could show the most basic ability to read aloud the easily memorize Biblical Psalm 51, verse 1

Have mercy on me, O God, according to your unfailing love; according to your great compassion blot out my transgressions.-Psalm 51:1

King Henry II, aware of this source of eluding justice, grew enraged by this circumvention of his royal authority. It seems a large part of his fury was sparked by what he viewed as Thomas Becket’s disloyalty. Having promoted him from chancellor of England to archbishop of Canterbury, Henry II seems not to have envisioned his friend and seemingly stalwart ally could become a competitor on any level.

Courts of Chancery:

During this early division between church and state, Becket’s courts would first be dubbed courts of chancery, later courts of equity, and currently, civil courts. Despite Henry II’s fury, Becket retained his stand as to the validity of any claim involving even a nominal clergyman being entitled to judgment in his Ecclesiastical courts.

A further incentive to plead before the courts of chancery lay in that the common law courts could award only financial damages. This meant if a rose garden was being regularly trodden down by a neighbor’s horse, the gardener could be recompensed only in financial terms. The destruction of his garden and his emotional sense of loss and frustration fell outside the range of common law. In addition, courts of chancery could order a perpetrator to do or refrain from doing whatever action had caused the plaintiff’s distress.

Thus, the law of equity was meant to create a forum where emotional pain, as well as financial loss was considered when reaching a judgment. In addition, claims brought in courts of equity were heard in English, rather than the traditional Latin. This meant the words read out and voiced in a court of equity were equally understandable to all those engaged in the verbal sword play.
The law of equity has been described as Gloss on the common law". This gloss proved especially true when a court of equity handed down a verdict contradicting that of a common law court.

Clash becomes Bloody Combat:

As to the king and archbishop, there conflict intensified. Hence, although Becket found some refuge in the court of France, England remained divided by this dispute. When, after Becket’s return to England, no compromise could be reached, Henry II is believed to have urged his barons to eliminate him by means of his often-quoted plea/demand to his barons:

Will no-one rid me of this meddlesome priest?
Four barons, acting on what they believed to be their monarch’s command, soon found and killed Thomas Becket. Shortly thereafter, the king, seen as the impetus of this crime, was subjected to hostility, edging towards hatred. Ultimately, by way of appeasement, King Henry II felt impelled to undergo a public whipping by way of a penance.

In addition, as tends to happen with heroes, Becket’s murder generated far more power than he might ever have achieved, had he died in a natural, timely way. Not long after his death, the pope canonized him, thereby creating his veneration as St. Thomas the Martyr. Various shrines were built to commemorate him; numerous acts of healing were attributed to Becket’s grace and benevolence.

Law of Equity & its development:

Initially, as with common law, decisions made by the courts of equity were predicated upon the views and conscience of an individual chancellor. In time, however, this ethical choice was abandoned in favor of development of an orderly system of equitable principles. Doctrines and rules took on definite form.

The court of equity developed its own principles, embodied in maxims such as: He who comes into equity must have clean hands" meaning, If he seeks equitable help he must be able to show, to the court’s satisfaction, he has behaved ethically in his dealings with the defendant. "Delay defeats equity" meaning, waiting too long to bring a claim will render it invalid. In modern terms, this is deemed the statute of limitations.

Intertwine of Act & Intent:

The major dividing line between past laws and laws of today is the separation of what a defendant may have done, and his motives for doing so. Originally, only acts were considered. According to Chief Justice Brian The thought of man shall not be tried, for the devil himself knoweth not the thought of man. (In many early cases, the names of the parties and judges were either not recorded, or have been lost).

Still, the perception of the results of an act, rather than whatever intent might have sparked it, was voiced in an 1146 case where a judge held, if anyone commits an act, however acceptable in itself, which may impact upon others, he has a duty to conduct this act, to the utmost level of his ability, in a manner which causes no personal injury or property damage to another.

To paraphrase his judicial opinion, referring to himself in a hypothetical sense, the judge explained if in the process of lifting timber in order to construct a building, I drop a piece of that timber, causing harm to my neighbor’s home, he will have a valid claim against me. It will not matter that my construction was entirely lawful, or that I did not intend the result to occur.
Hence, inferentially, the defendant owes the plaintiff the monetary compensation needed to repair the harm, as well as the cost of the labor involved.

Importance of Intention:
The importance of intent became recognized, although at first in a tentative way, with a lingering sense of uncertainty.

Thus, in a 1681 case, a judge determined:

The law does not so much concern itself with the intent of the actor as with the loss and damage of the party suffering. This indicates intent had begun to be seen as a force which, if not yet central, could no longer be dismissed, as lacking the slightest significance.

In terms of both criminal and tort systems, intent is pivotal to nearly every judicial decision. Where the dropping of the timber can be shown to have been intentional, or due to extreme negligence, it is likely to result in punitive as well as compensatory damages. As their words imply, compensatory damages are meant to force the defendant to pay for the actual harm, perhaps replacing a roof and/or a number of shattered windows.

On the other hand, punitive damages are intended to punish, where intent or negligence reaching the edge of intent, can be found by a judge or jury. In modern terms, most tort cases are resolved by a judge, unless the issue is of such a serious nature as to require a jury.

Origin of Torts Law in India:

In present day tort law in India is a fragment of English common law and it is structured on the basis of morality which acts as a legal impulse among individuals to perform their duties towards each other and if there is any breach of duty then it provides remedy to the plaintiff in form of compensation or damages by the tortfeasor. The Sanskrit word Jimha, which implies towards its meaning

crooked was used in ancient Hindu law text in the tortious of fraudulent conduct’. The philosophical approach to the law of torts in India was started through the LIABILITY of STATE during ancient India.

An Approach Towards Law of Torts in India During Ancient Era:

The individuals of ancient India consider that the State and the King are the basic tools for their peaceful promotion of their lives. There are several literatures that also describe the law and the legal institutions, liability and immunity of the King, ideas of the origin of the State, the nature of the society, responsibilities of the sovereign towards its individuals and equitable remedy to the affected persons through Ordeal system etc.

The most important amongst the various manuscripts are the Vedas, Sutras, Smritis, Epics, Kautilya’s Arthasashtra and the writings of foreign travelers. They also tell us the responsibilities of the State to compensate the victims, affected by the officials of the King during ancient period.

The concept of vicarious liability in India was developed during Vedic period. The King had to safeguard the life and property of the people. If any wrong happened to affect the people, the King was responsible to compensate them from King’s malkhana. According to Manu where common man would be fined with Karshapana, the King shall be fined one thousand, which is the settled Law. Brihaspathi says where a servant commissioned by his master does any improper act for the benefit of his master, the later shall be held responsible for it. Thus once, it is established that the servant’s act is for the benefit of the master in the course of his employment, the master becomes liable.

Thus, according to Henry Maine, The Penal law of ancient communities is not the law of crimes. It is the law of wrongs, or to use the technical word of torts.
But it is observed that during ancient period tortious liability acts as a safeguard to the king and the state for their criminal acts.

Medieval Era:

It was observed that there was very less development of law of torts in India in comparison to criminal law during Islamic rulers (e.g. Delhi Sultanate, Mughal empire) just because of their principle of An eye for an eye and tooth for a tooth.

The English Common Law & Evolution of Torts Law in India during 18th & 19th century:

The law of torts in India presently, is mainly the English law of torts which itself is based on the principles of the common law of England. British empire brought Common Law and formal Tort law to India through the three presidency courts through efforts of Sir Henry Mane and Sir James Stephens and attempted for codification in 1886 by Sir Frederick Pollock in form of Civil Wrongs Bill but it was never passed.

During British rule, courts in India were enjoined by Acts of Parliament in the UK and by Indian enactments to act according to justice, equity and good conscience if there was no specific rule of enacted law applicable to the dispute in a suit. In regard to suits for damages for torts, courts followed the English common law insofar as it was consonant with justice, equity and good conscience. They departed from it when any of its rules appeared unreasonable and unsuitable to Indian conditions. An English statute dealing with tort law is not by its own force applicable to India but may be followed here unless it is not accepted for the reason is mentioned below.

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.

Also in the 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

Law of Tort or Law of Torts?

Winfield Theory of Law of Tort:

Winfield is the chief supporter of this theory. He says, all injuries done to another person are torts, unless there is some justification recognized by law. Thus according to this theory tort consists not merely of those torts which have acquired specific names but also included the wider principle that all unjustifiable harm is tortuous. This enables the courts to create new torts. Winfield while supporting this theory comes to the conclusion that law of tort is growing and from time to time courts have created new torts.

The theory given by Winfield has been supported by many eminent Judges both ancient and modern.

Following are some examples:
HOLT, C.J. clearly favoured Winfield’s theory, by recognizing the principle of ubi jus ibi remedium. He said that, if man will multiply injuries, actions must be multiplied too; for every man who is injured ought to have recompense [Ref. case- Ashby v. White (1703) 2 Ld. Raym. 938].

Winfield Theory and Indian Judiciary:

The judicial system of India supports Winfield Theory of Law of Tort. In support of Winfield’s Theory in the landmark case of M.C. Mehta v. UOI justice P.N. Bhagvati 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. In the same case SC of India established a new concept of Absolute Liability in place of Strict Liability.

Salmond’s Pigen Hole Theory:

According to this theory there is no general principle of liability and if the plaintiff can place his wrong in any of the already present torts, he will succeed.

Winfield made a modification in his stand regarding his own theory. He concluded that both his and Salmond’s theories were correct, his theory from the broader point of view and Salmond’s theory from the narrower point of view. It’s thus a question of approach and looking at the things from a certain angle. Each theory is correct from its own pint of view.

Some Historical Facts Related to Law of Torts:
  • Boulton v. hardly (1597, cro. Eliz. 547) was the first reported case in which term tort was used.
  • Concept of vicarious liability emerged from German Civil Code.
  • The term tortfeasor was first used in GORDON V. LEE, 1935.
  • Damages were first awarded to fetus in US in 1946, in Australia 1972, Canada 1973 and in England 1976

  • TOPIC_1_INTRODUCTION_Definition_Nature_and_Scope
  • B. S. Sinha, An Introduction to the Law of Torts through Indian Cases, 1965
  • D.D. Basu the law of torts
  • Salmond and Heuston – On the law of Torts (2000) Universal Delhi
  • D.M. Gnadhi – Law of Torts – Eastern Lucknow

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