How Relevant Is Tort Law Today
The word Tort has been derived from the Latin word tortum which translates
to 'twisted'. In the easiest set of words, a tort is a civil wrong that causes
someone to suffer loss or harm and results in legal liability for the person who
commits the tortious act. Wrongful Act, Legal Damage and Legal Remedy are the
three essential characteristics of Tort.
The concept of deciding cases by
applying Tort Laws commenced during the British era in India. It is a relatively
new development here, and most of it is still uncodified. The earliest origins
of Torts can be seen in the Roman laws in the form of delict, which later
influenced the civil law jurisdictions in Continental Europe, but a distinctive
body of law arose in the common law world traced to English tort law. The
sources of Tort Law in India includes 'Statutes' and 'Common Law'.
Historically, the development of some laws, legal concepts or legal rules were
not from acts of parliament or statutes but from various judgments of English
courts as well as courts of various common law countries. Tort law is not a
result of any act or statutes but it has evolved from various landmark cases of
legal history and that is, what makes law of torts one of the most interesting
and captivating areas of law as well as an attractive subject for young lawyers.
The meaning of law for the society is recognized from the concept of every wrong
has a corresponding remedy. The principle of law of torts which a civil law
emerged from the same concept in the 17th century, England and India also
follows the same concept of tort.
Where there is a right, there is a duty is a concept that we apply in
our everyday life which means for example- if A has a right, B is having a duty
to respect A's right but if B does not respect A's right and causes him damages,
he is liable. It means that if one person's wrongful act or omission causes
damages to another person, one has to provide remedy for the damages he has
This is based on a latin maxim, Ubi Jus Ibi Remedium, which is the very
foundation of the law of tort. The purpose of tort is that the victim who's
legal right is infringed or violated, is compensated by the person who provided
damages in the first place and also to discourage them to do the same violation
Examples of tort can be car accidents, construction accidents, medical
malpractices, trespassing, nuisance, defamation, battery or assault, false
imprisonment and negligence. All torts are based on a very famous concept,
fault based liability but today with the growth of tort law, the area expanded
to no fault liability like strict liability and absolute liability.
Intentional Tort, Negligence and Strict Liabilities are the types of Wrongful
Relevance Of Tort Law
In big and developed countries like England, USA, United Kingdom or Australia,
with the growing economies and legal system, the scope of tort as a subject of
civil law has evolved to an extent that it accepts new areas of tort law which
is codified, provides with the proper ground as off what constitutes a
particular tort and also the rates at which the compensation is provided to the
injured party is huge, which secures the interest of general public and there
The very famous and one of the landmark cases of tort law, Johnsons &
Johnsons talc powder cancer case. In 2018, US state of Mississippi- 22 Women
claimed that they are suffering from ovarian cancer by using Johnson's talcum
powder and about $3.6 billion was awarded to them by the company. The jury said
that the talc powder is made from clay minerals composed of silicon and
In the case of India, which is still a developing country, tort emerged with
the emergence of British India itself. India adopted the British laws after
independence and with that also adopted the twisted concept of tort law.
Although, enactments like Motor Vehicles Act 1988, The Human Rights Protection
act 1998, Consumer Protection act 1986, Environment Protection act 1986 were
introduced as a form tortious liability in India but there is no codification of
law of tort in our country.
The most famous and unfortunate case of M.C. Mehta V. Shri Ram Foods and
fertilizers Industries and Union Carbide Corporation vs Union Of India,
1989 the Bhopal gas tragedy case introduced a new idea of absolute
liability in India which formulated a standard of tort cases in India too. In
the Bhopal gas tragedy, 1984 an approximate 2260 people died and 60,000 injured
with the leakage of methyl isocyanate gas from Union Carbide Corporation. People
living in Bhopal still suffer from respiratory and birth problems due to the
incident that happened years ago. This devastated tragedy not only questioned
Indian existing laws but also the scope of tort law in India. It also opened
doors for new types of tort law.
The Apex Court in Bhopal gas tragedy case decided that the company would pay 470
million dollars to the injured. This amount was not even half of what was asked
in the beginning by the injured parties. This amount was not based on any
original data but on the basis of social pressure.
Any good legal system ensures that the injured party or the public will not
suffer the same in future but in the case of India, recently in May 2020, the
same tragedy occured in Visakhapatnam where 12 people were killed and 100 were
affected by a gas leakage from LG Polymers plant after inhaling the poisonous
styrene monomer vapour. This is the same case of Bhopal gas tragedy and shows
the past unresolved and weakened system of tortious liability can result in more
deaths and sufferings for generations to come.
The lack of codification of tort law and proper grounds of what constitutes
wrongful omission with the political involvement in judicial background results
in harm to not the rich but the general public who are innocents in front of big
MNCs and industries. Even if the system of providing justice gets involved with
political and profit making gambling, the lives of innocent Indians are always
at stake. In laws of any country, there can be loopholes in the system but in a
country like India, if the whole system is corrupt and headed by politics, the
scope of any kind of compensation to the victim is very limited.
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 relevance of tort law today is wide and organised in foreign countries but
in India the scope of tort law is very limited and still developing. In India,
where more than it takes years to solve a property issue or any criminal case
and the public is scared to visit judicial offices for any cause, it would be
unfair to think that the country can handle cases of tort law or even provide
that scope to tortious liability.
MNCs and other foreign companies rule Indian economies because the weak legal
and political systems are focusing on profit maximization, rather than
protecting the interest of individuals. The need is for codification of tort law
and providing liability for the wrong-doer. India to involve tort law in the
legal system, must first build a judiciary so strong and wide that the belief of
the public on justice is given center attention than any political pressure.
As Justice P.N. Bhagwati in M.C. Mehta case quoted that:
We need to evolve new principles and norms which adequately deal with problems
of newly industrialized economies rather than constructing our judicial thinking
on the basis of laws in England. We have to build our own jurisprudence. In a
more recent judgement of 'Jay Laxmi Salt Works (p) Itd v. State of Gujrat', Sahai, J., observer; 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.
Written By: Madhav Monga
Law Article in India
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