LLB NOTES: First Year: Law Of Torts: Unit I: Development Of Law Of Torts

Coverage of this Article

Development of Law of Torts

-Tort laws were designed to compensate the injured party by obliging the wrongdoer to compensate for his act or omission. Generally, all torts are wrongs, but all wrongs do not come within the ambit of Torts. 

History of Tort Laws

-The evolution of torts is not a recent phenomenon. We can find traces similar to torts even in the beginning of the 11th Century.

Development of Tort Laws: Indian Perspective

-Tort Laws in India marked its roots during the British Rule. The Charter of 1726 established English Courts in the Calcutta, Bombay, and Madras Presidencies, which were named as Mayor Courts. These Courts followed the principles of Common Law that recognized equity, justice and good conscience as its main components. Tort was treated as an inseparable part of the Common Law and since then (1726), the law of torts was officially recognised by Indian Courts. So, the credits ofintroducing tort laws in India would definitely go to the English officers in India.

Equity, Justice, Conscience

-However, there has been very gradual progress in this field with very little indigenous developments.

India as a Tort Deficient Country

-Section 9 of the Code of Civil Procedure, 1908 empowers a civil court to try all suits of civil nature, unless it is expressly or impliedly barred.

Development of Law of Torts

-Tort laws were designed to compensate the injured party by obliging the wrongdoer to compensate for his act or omission. Generally, all torts are wrongs, but all wrongs do not come within the ambit of Torts. Salmond says that a tort is an “obligationes ex delicto”, that is, it arises when an act or omission of one person violates a legal right of another person. Tort law is not considered as a final and steady law; it is rather continuous in nature and keeps evolving over time.

History of Tort Laws

-The evolution of torts is not a recent phenomenon. We can find traces similar to torts even in the beginning of the 11th Century. The first case in which the term tort was reportedly used was Boulton v. Hardy (1597). However, at the same time, it is also important to note that its development was not drastic and the changes were witnessed very slowly. The French are widely accepted as the ones who had introduced the concept. Tort is in fact a French word and it means differently in different languages. For instance, in English, the word tort is equivalent to “wrong”, whereas it is derived from the Latin word “tortum”, meaning crooked or twisted.

Development of Tort Laws: Indian Perspective

-Tort Laws in India marked its roots during the British Rule. 

Equity, Justice, Conscience

-However, there has been very gradual progress in this field with very little indigenous developments.

India as a Tort Deficient Country

-Section 9 of the Code of Civil Procedure, 1908 empowers a civil court to try all suits of civil nature, unless it is expressly or impliedly barred. This also includes tortuous cases and liabilities. Though this also gives a scope to judges to entertain such a suit, yet there is no specific law governing the same. We are still influenced by the English Law which in turn is based on its own customary rules. Therefore, there is a high need to revolutionize the tort laws in India.

Development of Law of Torts

Tort laws were designed to compensate the injured party by obliging the wrongdoer to compensate for his act or omission. Generally, all torts are wrongs, but all wrongs do not come within the ambit of Torts. Salmond says that a tort is an “obligationes ex delicto”, that is, it arises when an act or omission of one person violates a legal right of another person. Tort law is not considered as a final and steady law; it is rather continuous in nature and keeps evolving over time.

History of Tort Laws

The evolution of torts is not a recent phenomenon. We can find traces similar to torts even in the beginning of the 11th Century. The first case in which the term tort was reportedly used was Boulton v. Hardy (1597). However, at the same time, it is also important to note that its development was not drastic and the changes were witnessed very slowly. The French are widely accepted as the ones who had introduced the concept. Tort is in fact a French word and it means differently in different languages. For instance, in English, the word tort is equivalent to “wrong”, whereas it is derived from the Latin word “tortum”, meaning crooked or twisted.

Though the concept was perceived as a separate branch of law, yet there was no codification and the law of torts was included in the common law of a country. The maxim “ubi jus ibiremedium” (where there is right, there is remedy) is the central theme of torts. Thus, in general, a person whose rights have been violated from the wrongful or unlawful acts of another gets a remedy under the law of torts. With these explanations, it is clear that the law of torts is substantive, and not procedural in nature.

The initiation of the concept of torts as a substantive field of common law was accomplished by Oliver Wendell Holmes in 1881. According to him, the basis of tort liability is fault, or failure to take due care and precaution that a prudent man is expected to take under the circumstances. Mostly, including the experiments of Holmes, tort laws developed when scholars felt a need to study negligence. 

Sir Morton J. Horwitz, in his book “The Transformation of American Law (1977)”, while analysing the negligence law, took a slightly different view from Holmes and maintained that the original standard of tort law was strict liability, and not fault. The fault theory, he argued, was connected to torts only in the nineteenth century. Later, several other scholars joined in the debate. However, the question as to whether tort originated from fault theory or strict liability remained unanswered.

Mostly, between the seventeenth and nineteenth centuries, tort laws were used to rationalize people to behave in morally correct ways. Therefore, it can be concluded that standard tort laws possibly emerged in the seventh century. Before the emergence of tort laws, early states had a more grievous punishment even for private wrongs. Later on, monetary compensation was substituted and the elements of revenge had almost disappeared. The law of torts has since been developing gradually. The fact that the law of torts is comparatively narrower than other branches of law, especially crime, cannot be denied.

Development of Tort Laws: Indian Perspective

Tort Laws in India marked its roots during the British Rule. The Charter of 1726 established English Courts in the Calcutta, Bombay, and Madras Presidencies, which were named as Mayor Courts. These Courts followed the principles of Common Law that recognized equity, justice and good conscience as its main components. Tort was treated as an inseparable part of the Common Law and since then (1726), the law of torts was officially recognised by Indian Courts. So, the credits ofintroducing tort laws in India would definitely go to the English officers in India.

Equity, Justice, Conscience

However, there has been very gradual progress in this field with very little indigenous developments. One of the unique features of our tort law is that it is applied as per our customs and traditions. The Courts had stressed this factor in several cases. In Vaghela v. Mussedin (1887) and Naval Kishore v. Rameshwar (1995), it was held that even though our country has adapted the English principles of equity, justice and conscience, the rules of law of tort must be made applicable as per the Indian customs, conditions, and traditions.

Tort Law in India is not codified and therefore, it became difficult for Courts to exactly determine whether a case amounts to tort or not. Moreover, the exact punishment is also not prescribed and judges mainly refer to judicial precedents while dealing with a tort case. As stated in Eastern M. C. Ltd. v. Premium Auto LTD (1962), cases of torts are continuing to be decided based on the principles of equity, justice and good conscience.

India as a Tort Deficient Country

Section 9 of the Code of Civil Procedure, 1908 empowers a civil court to try all suits of civil nature, unless it is expressly or impliedly barred. This also includes tortuous cases and liabilities. Though this also gives a scope to judges to entertain such a suit, yet there is no specific law governing the same. We are still influenced by the English Law which in turn is based on its own customary rules. Therefore, there is a high need to revolutionize the tort laws in India.

Sir Marc Galanter opined that India is deficient and needs a comprehensive law of torts. Codification seems to be an important step that our country needs to take, to officially record its recognition. While some laws have been codified such as the Motor Vehicles Act, Employment Compensation Act, etc., a large portion of this law is still relying on judicial precedents. Unlike this branch of law, all other branches like crimes, contract, property, etc. have been systematically designed to make it more effective and efficient.

Let’s have a look into the observations of Justice P. N. Bhagwati in M. C. Mehta v. Union of India (1988): “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 that matter in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”

The above observation of the learned judge manifests the need for our own tort Laws. However, it is also a widely accepted fact that this branch of law is not stagnant and has a continuous growing tendency. The Supreme Court, in Jay Laxmi Salt Work (P.) Ltd. v.the State of Gujarat, observed that law of torts, being a developing law, its frontiers are incapable of being strictly barricaded.It is an unstable law that has to change with the evolving world, and therefore the areas that fall under it are steadily increasing. However, this non-uniformity has also resulted in infrequent protection of people’s rights and interests. Considering all these facts, it can be stated that itis important to design the tort laws in such a manner that it is both protective as well as unrestricted in its scope.