Fundamentals Of Torts Law & Its Development in India

Name: Pranav Darekar, PES Modern Law College, Pune

Introduction:

You are walking on the road at one point, and at the other, you fall into the pit that the Municipal Corporation left open. Without having a look around, you stand up rapidly to conceal the humiliation you have confronted. But how can you proceed? This happens occasionally, particularly in a nation like India. Is there anyone to be held accountable for this? Because I’ve been hurt, I should be more careful next time. Isn’t it? No, there was an obligation of the District in this present circumstance. They were careless in performing their duties. This and a great deal more are discussed in the law of torts.

Meaning:

Tort means misdeed. The Latin word “tortum,” which means “twisted or crooked,” is where the word “tort” comes from. In contrast to the breach of contract or trust, Salmond defines a tort as a civil wrongdoing that results in a common law lawsuit for unliquidated damages. A tort occurs when one party causes harm to another through negligence. The suing party is the ‘offended party,’ while the party being sued is the ‘respondent.’ The singular inflicting damage is at risk to repay the harmed party (the offended party) with cash, known as ‘harms.’ To guarantee harm, there should be a break of obligation towards the offended party, bringing about injury. Regardless of whether mischief is incidental because of carelessness, the party in question can, in any case, be sued. Torts empower people to consider others responsible for the injuries caused to them.

Fundamentals Of Law Of Tort:

Act or Omission:

To constitute a tort there must be an act, which can either be negative or positive. There should be a rift of obligation to comprise such a wrongful act or omission. It means that there was a duty to do or not do something, or to act in a certain way that a reasonable man would expect in certain circumstances. if a company runs a children’s park that has a poisonous plant but doesn’t have adequate fencing. The company could be held liable for such an omission if one of the children consumes a fruit from that tree and dies. Social or moral wrongs cannot be held against an individual. For instance, unless some legal duty can be demonstrated, a person cannot be held responsible for failing to assist a man who is starving.

Legal Damage:

There must be a breach of legal duty for it to be considered a tort. The plaintiff’s legal right should have been violated, or a specific act or omission should have violated the legal duty. If a legal right is violated, the action can be taken. For the injury supported by the offended party, harm could be guaranteed by him. Lawful harm could be seen all the more obviously with the assistance of the following maxims:

Injuria sine damnum: “Injuria” means interfering without permission with the plaintiff’s right. “Damnum” signifies mischief or misfortune experienced as far as solace, cash, well-being, and so on. When a legal right is violated without causing harm to the plaintiff, the plaintiff can go to court.

In the case of Ashby v. White (1703), the plaintiff was denied the opportunity to vote in the parliamentary elections. He was a qualified voter. Despite the fact that he experienced no immediate mischief since his favored up-and-comer had proactively won, the litigants were as yet considered responsible. This case laid out the rule that mischief reaches out past simple monetary misfortune and incorporates the infringement of one’s freedoms, qualifying the person for lawful cures.

Damnum sine injuria: According to this maxim, there is some injury caused to the
offended party with next to no unapproved obstruction to the offended party’s lawful
right. An individual can’t guarantee harm in regulation regardless of whether the injury
is caused because of the purposeful demonstration of the respondent, as long as the
other party is practicing his legitimate right. For instance, a defendant constructed a
school directly in front of the plaintiff’s school. The offended party endured misfortune
due to the adversary school as he needed to bring down the expenses and numerous
understudies took confirmation in the litigant’s school. There is no cure accessible for
the misfortune endured by him. The defendant has not violated his legal rights in any
way.

Kinds of Torts:

Intentional tort:

To commit an intentional tort, some activity should be finished with a reason i.e. there should be an expectation to commit a demonstration. It is generally accepted that no one should intentionally attack another person for the benefit of society. For instance, if you hit a person in the head with an iron rod, you intend to harm them in a particular way.
Intentional tort includes the following types:

Battery: Battery is the physical application of force to another person’s body in an offensive manner that causes some harm. The offensive touching that occurs without the other party’s consent is considered battery. Even if the person didn’t mean to hurt the other person, he or she is guilty of battery if they knew their actions could hurt someone in some way. The individual’s right to freedom is violated in any way with the intention of harm. Using a stick to hit someone or punching them in the face are common forms of battery.
Elements of battery include:
The intention to use force must be present.
There should be real actual contact with the body of someone else.
Some harm must occur.
Assault: When one person’s action raises suspicions in another that the other person
intends or is likely to cause harm as a result. It could be anything from verbally
threatening someone to point a gun at them. Fear should not be confused with
apprehension. When a person is aware that an injury is imminent, they experience
apprehension. Even if the victim later discovers that the gun was not loaded,
threatening to shoot another person while pointing a gun at them constitutes an assault.An assault does not involve any physical contact, unlike a battery. For instance, an
assault occurs when a person flinches but does not punch another person.

Essential elements of assault are:

A) There has to be a fear of harm.
B) Forceful action must be intentional.
False imprisonment: In the event that somebody limits someone else’s capacity to move
uninhibitedly, that can be false imprisonment. To have a claim, the plaintiff must
demonstrate willful and illegal detention without consent. This could occur in the event
of a hostage situation or an invalid citizen’s arrest. Physical restraint or unreasonable
coercion are examples of forms of false imprisonment.
Trespass: It is the deliberate, preposterous intrusion of the property, land, individual or
merchandise. The outlandish impedance can make badgering or damage the other
individual, regardless of how slight it is. The property owner’s legal right is violated
because he is denied the opportunity to benefit from the property through
misappropriation or exploitation.
Conversion: Conversion happens when somebody needs to recapture the worth of a piece of property that was taken without their consent and can never again be returned (for instance, it is spent or something different happens to it all the while.) A conversion tort exists if the property is sold, damaged, altered, misused, or not returned. It is important to keep in mind that conversion can apply to gas in a lawnmower that a neighbor borrowed without permission as well as to other physical, tangible property like a vehicle, bicycle, or electronic device.

Tort based on negligence: Negligence is the failure to exercise common-sense precautions to prevent another person from foreseeable harm through one’s actions. It is the inability to act in a specific way by considering the caught injury that could be supported because of impudence to one party.

Elements of negligence are as follows:

Duty: The litigant has an obligation to someone else of some sort. For instance, somebody driving a vehicle has an obligation to appropriately work it.
Breach: There was some sort of breach of that duty. If someone drives their car improperly and hits the plaintiff, they have broken their promise.
Causation (cause in fact): The plaintiff must show that the breach of duty directly caused the incident that happened to them or their loved one.
Damages: The incident caused an injury to the plaintiff or a member of their family.
Proximate Cause: A person is held liable for harm if it was reasonably foreseeable as a result of their actions. Liability is based on foreseeability and proximate cause. The motorcyclist is liable for the pedestrian’s injury in the example, but not for a bystander’s heart attack because it was unforeseeable

Intentional Torts Vs Negligent Torts:

While certain torts are intentional, many fall under the class of negligent all things being equal. A negligent tort is when a person violates a duty owed to another by taking careless actions like driving while distracted, failing to act, or intentionally causing an injury. At the end of the day, the damage caused to one another happened unexpectedly, yet in a circumstance where the law perceives a commitment to make it right. Numerous individual injury cases fall under this classification, like fender benders, clinical misbehavior, and slip and fall wounds, from there, the sky is the limit.

Development of the law of torts in India:

To manage the malicious way of behaving of individuals tort existed in Hindu and Muslim regulations however one might say that tort was officially presented by the Crown in India. Equity, justice, & conscience are its guiding principles. The principles of “common law,” primarily the English tort law, serve as the foundation for tort law. In Indian courts, tort law is applied selectively, taking into account whether it is appropriate for Indian society.
In the case of M.C. Mehta v. Union of India Justice Bhagwati observed that “We need to develop new standards and set down new standards which will sufficiently manage new issues which emerge in an exceptionally industrialized economy. We cannot allow our judicial reasoning to be shaped by the law as it applies in England or any other country. We are absolutely prepared to receive light from any source, but we must develop our own legal system.”

Overview of Strict liability under the law of torts:

Different types of strict liability torts can occur, such as product liability cases. In the event that a physical issue results from a flawed item, elements like makers, packers, or merchants might be considered mindful. However, strict liability may not apply if a customer alters the product or uses it improperly in violation of the owner’s instructions. This sort of obligation can include items like clinical gadgets, food, and vehicles, from there, the sky is the limit. Owners may be held strictly liable for their animals’ actions in cases involving wild or domestic animals. Various regulations apply to homegrown creature cases, with certain states having stricter guidelines, particularly in regard to specific canine varieties.