Concept of Torts in the sphere of Civil Laws in India written by Prachi Mehta student of MKES College of Law
Torts are one of the important branches of Civil Law. A tort is a civil wrong which means a wrongful act committed by a person, causing injury or damage to another person. These injuries are not limited to physical but also include emotional, economic, reputational injuries as well as a violation of constitutional rights. In torts, the duties imposed are not towards a specific person but towards the public at large. Thus, every individual has a legal obligation to protect the rights enjoyed by other individuals in the society and if there is a failure to this legal duty, the injured can institute a suit in Civil Court for remedy or damages. Thus, according to Section 2(m) of Limitation Act, 1963: “Tort is a civil wrong which is not exclusively a breach of contract or breach of trust.”
POSITION IN INDIA
Tort Law in India derived its roots from English laws. It is relatively a young concept that is still in the process of development and a non-codified state. In advanced countries like the USA, UK, and Canada aspects of tort law have been well codified, therefore, the courts in India along with referring the local judicial precedents have readily referred to the cases from foreign common law jurisdictions. However, more attention is given to local socio-cultural conditions while applying foreign common law principles. Tort law in India contains the combination of both statute and the common laws such as The Indian Penal Code criminalizes certain areas of tort like- defamation, assault, battery, etc. The principles of Law of tort have been also applied in other legislations such as The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, and The Environment Protection Act, 1986.
Though, the Law of Tort owes its origin to the English laws the Indian courts are not bound to follow the British laws and can evolve as per the requirements of the society. A landmark judgment of the Supreme Court of India in this respect was the case of M.C. Mehta vs The Union of India where it was observed that the rule laid down in Ryland vs Fletcher was not sufficient and the Supreme Court went one step further and introduced the concept of Absolute Liability.
ESSENTIAL CONDITIONS FOR A TORT
There is no such fixed conditions or circumstances which can constitute a tort. Here, the concept is taken in a broad sense and it consists of all the legal injury done by a person to another thereby creating a cause of action for unliquidated damages. However, certain general conditions are essential for tortuous liability:
a) Wrongful act or omission
b) Legal damage
c) Legal remedy
a) Wrongful act or omission
A wrongful act means an action by an individual that goes against the law so as to the violation of the legal rights of another. Therefore, for a tort to happen, the defendant must have first either done something that he was not expected to do. However, the omission of the act is considered as inaction or where there was a duty to perform and liability arises due to non-performance of that duty.
The wrong committed can be of two types-
i. Public wrong- Wrongful acts against people at large in the society are called a public wrong. These acts are tried in Criminal courts.
ii. Private wrong- Wrongful acts against an individual person are called a public wrong. A tort is a private wrong. These acts are tried in Civil Courts.
b) Legal Damage
The wrongful act must result in causing legal injury to another. The act or omission of an act must be bounded by law or the duty must be imposed by law on the individuals. Thus, there exists a legal obligation on a person to protect the rights of other person and breach of that particular duty would be held liable under tort. The remedies provided under the law of tort can be a judicial remedy or extra-judicial remedy i.e. outside the court settlement.
c) Legal remedy
The wrongful act or omission of an act must be of such a nature as to give rise to a legal remedy. The Latin maxim ‘Ubi jus ibi remedium’ meaning, ‘there is no wrong without a remedy’ The right of an individual which is enjoyed by him, can only be understood if a certain legal remedy is provided in the event of its violation. If there exists no legal remedy then there exist no rights of the citizens. In the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, the court introduced the concept of this legal maxim and stated that the courts should focus to protect and preserve the rights and help to enforce the same.
LIABILITY FOR A TORT
Tortious liability arises when all three essential elements satisfy the conditions. Along with this, there has to be a link between the wrongful act and the injury caused to the person. The defendant will not be liable for the damage unless the wrongful act has a direct connection with the injury as the law cannot take account of everything that follows a wrongful act. The defendant cannot be made responsible for remote damages but only the proximate consequences. Thus, some tortious liabilities are as follows-
There are situations, where the person is held liable for the damages caused by his acts even when the actions are done without any ill intention or negligence on account of equity and justice. This principle was first held in the case of Ryland vs Fletcher where the defendant hired contractors to build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some old unused shafts under the site of the reservoir that leads to the plaintiff’s mine on the adjoining land. When water was filled in the reservoir, the water flooded the mine through shafts. The plaintiff sued the defendant. But the defendant pleaded that there was no intention and since he had no knowledge about the shafts, he was not negligent even though the contractors were. J Blackburn observed that when a person, for his purposes, brings to his property anything likely to cause mischief if it escapes, and causes damage, he must be held liable. Thus, the rule should satisfy three conditions-
i. The thing kept must be a non- natural use of land
ii. The thing must escape
iii. The thing must cause harm/damage to the plaintiff.
This liability arises when a product by the manufacturer, distributor, and seller causes injury to its consumer. This can be well explained in the case of Donaghue vs Stevenson where it was held that the manufacturer of a drink has a legal duty towards the consumers to ensure that harmful substances are not included in the drink. Thus, the manufacturer is liable under Product liability for any damage to its consumers through its products. This liability may be extended under the category of Strict Liability for manufacturing products which are unreasonably dangerous.
The history of the law of Product liability is largely connected with the history of privity of contract, which states a stranger to the contract cannot sue for damages or its specific performance. Thus, a manufacturer who was negligent and sold a product to a retailer, who further sold it to the consumer(plaintiff), was not held liable. The plaintiff would not get any remedy in tort as it was the manufacturer and not the retailer’s negligence which caused the harm. Soon the courts dropped the laws of privity of contract where the sellers falsely concealed the defects or where the products were dangerous to health or human life. A well-known case in this regard was Escola v. Coca-Cola Bottling Co. of Fresno where the manufacturer is held absolutely liable when a product is placed in the market by him, knowing that it is to be used without an inspection, proves to be defective and causes injury to the consumers.
If an enterprise is dealing with dangerous substances and due to some accident that dangerous thing escapes and causes harm and danger to the lives of people at a large scale, will the rule of Ryland vs Fletcher be applicable in the matter of such mass injury?
In India, as stated earlier, the concept of Absolute liability was witnessed in the case of M.C Mehta vs The Union of India. In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused injury to several people around the vicinity and even killed one advocate. The Honorable Supreme Court went one step further and introduced the rule of Absolute Liability. It observed that the rule of Ryland vs Fletcher was an age-old principle and was not sufficient to decide cases with such severe nature. It held that enterprises that engage in dangerous substances have an absolute responsibility to ensure the safety of common people around the vicinity. Under Absolute Liability, in the event of such an accident, the enterprise is made absolutely liable without any exceptions to the defendant. The reason is that the enterprise has a social obligation to ensure safety and to compensate the people who suffered losses. The Apex Court laid down that the measure of compensation should depend on the magnitude of the enterprise so that it can have a deterrent effect.
Respondent Superior, which means- “let the master answer” is a doctrine that holds the superior party liable for the actions of his servant or employee based on their relationship. Vicarious liability is also known as imputed liability where another person is held responsible for the wrongful acts committed by a person on whom he has authority. This doctrine applies in the relationships of Employer and Employee, Principle and agent, or Parental Liability.
i. Employer/Employee relationship-
An employer is vicariously liable for the acts done by his employee as long as the employee’s actions are under the scope of employment. However, if the employee commits a tort for purely his personal reasons which are unrelated to the employment, most jurisdictions will not hold the employer liable. The Courts sometimes distinguish between an employer’s “detour” and “frolic”. If an employer will be held liable if it’s shown that the employee had gone mere detour as it constitutes a minor departure from the work whereas an employee acting for his own benefit by constituting a major departure from work is undertaking a frolic.
An employer is not held liable for acts committed by independent contractors. However, when inherently dangerous activities or non-delegable duties are involved, an employer can be held vicariously liable.
ii. Principle/Agent relationship-
The owner or the principal is held liable for all the wrongful acts committed by the agent during the course of employment. For instance, the owner of the automobile can be held vicariously liable for negligence by a person acting as an agent under that owner and the agent is using the auto-mobile primarily for the purpose of performing a task for the owner. The Courts have been reluctant to extend this liability to the owners of other kinds of chattels. An owner of an airplane will not be held liable for the actions of a pilot who is performing the act for the owner’s purpose.
iii. Parental Liability-
Under this, the parents are held responsible for their own negligent acts such as, failure to supervise the child or leaving a loaded gun within a child’s reach. A parent’s liability usually ends when the child is emancipated i.e. reaches the age of majority as recognized in the eyes of law.
Any right would be meaningless if there was no remedy to restore the original position of the aggrieved party before its infringement. The damages provided under tort are exemplary or vindictive, real damages, or contemptuous damages. Apart from damages, the plaintiff can also sort for an injunction which can be perpetual or temporary or restitution of the property.
The law of Tort works on equity and common conscience and enables a relationship between members of the society to coexist in harmony and that each individual is required to fulfill his legal obligations towards others.