Reforms in tort law:

Indian perspective

Submitted by:

Lopamudra Mandal

B.A. LLB (H)

ROLL NO: 23

NATIONAL LAW University

Orissa

INTRODUCTION

Reforms in tort law: Indian perspective

Tort is a legal term in common law jurisdictions that means a civil wrong, and can be a criminal

wrong , that is recognized by law as grounds for a lawsuit. Its equivalent in civil law jurisdictions

is delict. It is part of the law of obligations but unlike voluntarily assumed obligations on the

parties created through a contract, the duties imposed under tort law are mandatory for all

citizens in that jurisdiction.To behave 'tortuously' is to harm another's body, property, or legal

rights, or to breach a duty owed under statutory law. India adopted tort law on the lines of

common law due to influence of British in India. Tort law was not particularly well known in

India context but off late due to some important reforms that have takes place. This project is

based on those reforms which have taken place and also what are the reforms that should take

place in order to adapt tort law to the present scenario.

RESEARCH METHODOLOGY:

OBJECT OF THE STUDY :

The main objective of the project is to look at the reform in the system of tort law which

has taken place in India and also the drawbacks and the flaws of the Indian tort law

system. We also look at the development of tort law in England and India and also what

reforms have taken place in other common law countries including india.we analyze what

reforms are the need of hour and a necessity in the current time.

SCOPE OF STUDY

The project is limited only to the study of tort reforms that have taken place in India we

don’t go into the details of what are tort law. We only look at its relevance in Indian and

common law context. We don’t go into details of the reforms taking place in other

countries we restrict the discussion to common law countries only.

RESEARCH QUESTIONS

What is reform in tort law?

Reform in tort law basically means the changes and the evolution that has been

brought into law of tort to facilitate according to the current scenario. It is to make

sure that laws don’t become stagnant and change according to need of time.. We

shouldn’t let traditional laws influence us and stop us back in giving justice to

people which is the main goal of law.

Why is it necessary?

In a country like India with more than 2 billion people there is always scope for

change with so many cases coming to our courts with a motive of fast disposal of

case we shouldn’t let the flaws of the judiciary hold back in redressing people.

How is it helpful for a legal system?

It ensures that our legal system doesn’t become static but adapts itself

accordingly by making the right changes wherever required.

What is the situation in India in this regard?

That is the central point of this project. It can be said that the reform in tort law

has been overlooked to some extent in India.

Chapter -1

Evolution and development of tort law

“A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not

exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable

obligation”- Salmond

The term ‘tort’ was introduced into the terminology of English Law by the French speaking

lawyers and Judges of the Courts of Normandy and Angevin Kings of England. As a technical

term of English law, tort has acquired a special meaning as a species of civil injury or wrong. Till

about the middle of the seventeenth Century tort was an obscure term, at a time when procedure

was considered more important than the right of an individual. This emphasis on procedural

aspect for determining the success for a case continued for some 500 years, till 1852, when the

Common Law Procedure Act was passed and primacy of substance over the procedure gradually

gained firmer ground. Today the maxim as it stands is ‘ubi jus ubi remedium’, i.e. where there is

right there is remedy. Tort is the French equivalent of the English word ‘wrong’ and of the

Roman law term ‘delict’. The word tort is derived from the Latin word ‘tortum’ which means

twisted or crooked or wrong and is in contrast to the word rectum which means straight. It is

expected out of everyone to behave in a straightforward manner and when one deviates from this

straight path into crooked ways he is said to have committed a tort. Hence tort is a conduct which

is twisted or crooked and not straight. Though many prominent writers have tried to define Tort,

it is difficult to do so for varied reasons. The key reason among this being, that the law of Torts

is based on decided cases. Judges while deciding a case, feel their primary duty is to adjudge the

case on hand rather than to lay down wider rules and hence they seldom lay down any definition

of a legal term. Furthermore the law of tort is still growing. If a thing is growing no satisfactory

definition can be given. Tort as we know today has evolved over the centuries and has grown

tremendously in countries such as the England, United States of America, and other progressive

countries and to a certain extent in India.

Indian scenario

In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha,

which means crooked was used in ancient Hindu law text in the sense of ‘tortious of fraudulent

conduct1. Most of Indian tort law was developed after the British colonization. The law of torts

as administered in India in modern times is the English law as found suitable to Indian conditions

and as modified by Acts of the Indian Legislature2.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.3 Under the Hindu law and the Muslim law, tort had a much narrower conception

than the tort of the English law. The punishment of crimes in these systems occupied a more

prominent place than compensation for wrongs. 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.

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 just mentioned. The

Indian courts before applying any rule of English law can see whether it is suited to the Indian

society and circumstances. The application of the English law in India has therefore been a

selective application. This fact is quite appreciated because there is a difference in the societies

1 Text of Narada cited in Priyanath Sen Hindu Jurisprudence, p 211.2 Ratanlal and Dhirajlal The Law of Torts 24th Edition, 2004, Wadhwa and Company, Nagpur; at p.1 SETALVAD, The Common Law in India, p.110. Sir Fredrick Pollock prepared a draft code of torts in India but it was never enacted into law.3 Ibid at p. 2; The observations of Justice Krishna Aiyar in the context of the tort of conspiracy in Rohtas Industries Ltd. V. Rohtas Industries Staff Union, AIR 1976 SC 425, We cannot incorporate English torts without any adaptation to Indian laws.

And systems of Britain and India. Tort law is not codified in India. This means whenever an

exigency arises, a precedent shall be set up to take care of the peculiar situation. 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 just mentioned

Chapter-2

Drawbacks of law of torts:

The drawbacks can be basically summarized into certain points:

Tort reform advocates argue that the present tort system is too expensive

Because of all people who have accidents, only some can find solvent defendants from

which to recover damages in the courts, P. S. Atiyah has called the situation a "damages

lottery

Per Capita cost on the tort cases varies from person to person

High Court fees in civil cases. NO Parity of Power

High-profile tort cases are often portrayed by the media as the legal system's version of a

lottery, where trial lawyers actively seek the magic combination of plaintiff, defendant.

Low profile cases do not get the proper treatment.

Limits on punitive damages

Limits on economic damages.

Excessive bench strength

Chapter-3

Reforms in tort law:

General perspective

Tort reform refers to proposed changes in the civil justice system that would reduce the high

cost to commerce and consumers of tort litigation and jury awards. Tort reform advocates focus

on personal injury in particular the United States tort reform is a contentious political issue. U.S.

tort reform advocates propose, among other things, procedural limits on the ability to file claims,

and putting reasonable caps on the awards of damages as well as reducing monetary incentives

for trial lawyers. In Commonwealth countries those initiating liability lawsuits must pay court

costs as well as the legal expenses of defendants should they lose, thus greatly reducing the

number of such cases. On the other hand, there are proposals by some to replace tort

compensation with a social security framework that serves victims without respect to cause. In

1972, New Zealand introduced the first universal no-fault insurance scheme for all accident

victims, which provides benefit from the government run Accident Compensation Corporation

without respect to negligence. Its goal is to achieve equality of compensation, while reducing

costs of litigation. In the 1970s, Australia 4 and the United Kingdom drew up proposals for

similar no-fault schemes,5 that were later abandoned. One positive consequence of the "tort

reform" campaign has been a reinvigoration of state constitutional law after a long period of

disuse and disfavor. This trend began in 1980 with the landmark decision by the New Hampshire

Supreme Court ,the New Hampshire Supreme Court is the supreme court of the U. S. state of

New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state

capital, Concord. In Carson P. Maurer, invalidating a broad "tort reform" statute on state

constitutional grounds. Since then, a significant number of state courts have recognized that state

charters may afford greater legal protections than the minimum provided by the U.S.

Constitution.

4 For a speech by High Court judge Michael Kirby, see Medical malpractice - an international perspective of tort system reforms (11.9.2000)5 in the UK, see the Pearson Report (1978) by the "Royal Commission on Civil Liability and Compensation for Personal Injury"

LAW REFORM IN ENGLAND

In the sense of statutory alteration of pre-existing law, has been a vigorous factor

in the English legal system for over a century.UK is several steps ahead of all other countries in

reforms in tort law. They have been advanced enough to plug the loopholes of tort law to some

extent compared to other common law countries. Some landmark cases that have made an impact

in the system of tort law not only England but the whole tort law system like Donoghue v

Stevenson 6,Ryland’s v Fletcher. Much of the expansion of tort law during the past half century

consisted of narrowing or abolishing these rules. Procedure and the organization of the courts

have been completely remodeled by a long series of statutes including such well-known acts as

the Common Law Procedure Act, 1852, the Judicature Acts, the Summary Jurisdiction Acts, and

the County Court Acts. Monumental statutes have brought order out of chaos in the realm of

local government. Many important branches of the law have been in some measure at once

codified and amended by such statutes as the Wills Act, 1837, the Bills of Exchange Act, 1882,

the Sale of Goods Act, 18937. An example Under the English Common Law the maxim was

"The King can do no wrong" and therefore, the King was not liable for the wrongs of its

servants. But, in England the position of old Common law maxim has been changed by the

Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong

actually authorized by it or committed by its servants, in the course of their employment. With

the increasing functions of State, the Crown Proceedings Act had been passed, now the Crown is

liable for a tort committed by its servants just like a private individual. Law Reform

(Contributory Negligence) Act, 1913 was also a landmark in tort law reforms in England. Here

basically we are concerned with law reform in a narrower sense, with what has been called

"lawyer's law reform

6 Donoghue v Stevenson [1932] AC 562

7The university of Toronto law journal vol II NO-2 1938

REFORMS IN INDIAN TORT LAW:

The judiciary is in fact, active on setting precedents on tort law. There has been a scattered array

of acts and statutes relating to different kinds of tort, like the Motor Vehicles Act, 1988 (it was

also enacted in late 80s) and Water Pollution Act, Air Pollution Act etc. The Environment

Protection also came up, as late as 1986, as an after effect of the Bhopal Gas Tragedy. A more

stringent rule of strict liability than the rule then the rule in Rylands v. Fletcher was laid down by

the Supreme Court in M.C.Mehta v. Union of India.8 The court gave the reasoning that the old

rule of the common law did not meet the modern techniques of science and industrial society.

There is a need to depart from that rule whereby the industries ought to be aware of their

responsibility, if they are taking benefit out some hazardous business. This approach of the

Supreme Court clearly shows that there is no need for a settled or a model tort law structure in

India. Its so-called branches are now assuming different dimensions. Thus, there is a present

ground norm or a basic covenant, which directs tort law. That ground-norm may be located in

the common law. There has been an importance given to the issues of global importance like

environment protection, which also finds a place in the law of tort. Assault, battery etc. are

smaller torts and there have been provisions incorporated for them either in the CPC or the

CrPC. The development of tort law is evident in the law relating to nuisance as well. Principles,

such as the polluter pays principle are now being accepted through various judicial

pronouncements in India. There has been a wide acceptance of cases going to the Supreme Court

via writ petitions or public interest litigations. This is a more effective and expeditious remedy

available. How often it has been seen, that the Supreme Court has admitted writ petitions under

Article 32 of the Constitution of India.9The courts have awarded compensation in such cases as

well. Thus, the courts have tried to provide an effective forum and method to the citizens. Now,

in matters like environment, in which the claimant’s problems used to be the prerogative of the

State Pollution Control Board. It was upon the Board to approach the court. The situation has

changed now. The courts have recognized citizen suits in such matters too, thus opening a new

way for the common men to approach the courts. Another reason why the Supreme Court has

8 AIR 1987 SC 965, 1986 INDLAW SC 820.9 Bhim Singh v. State of Jammu and Kashmir AIR 1986 SC 494, 1985 INDLAW SC 20; Rudal Shah v. State of Bihar AIR 1983 SC 1036

become remedy providers is that; there are very few problems of locus standi. Most of the cases

have been dispensed off in a very tactful and justifiable manner. There has been a wide

acceptance of cases going to the Supreme Court via writ petitions or public interest litigations.

This is a more effective and expeditious remedy available.

  Taking about compensation, Section 357(1) of the CrPC permits a court, while sentencing an

accused to fine, to award compensation out of the fine to any person for loss or injury caused by

the offence when compensation is in the opinion of the court, recoverable by such person in a

civil suit. Further, Section 357 (3) provides that a court can ask the accused (apart from the fine)

to indemnify the victim, by way of compensation.10 There is also a provision for injunction in the

Code of Civil Procedure as well as the Specific Relief Act.11An injunction is an order of a court

restraining the commission, repetition, or continuance of a wrongful act of the defendant.12 An

injunction may be granted to prevent waste, trespass, or the continuance of nuisance to dwelling

or business houses, to right of support, to right of way, to highways, to ferries, to markets etc.

Thus there is a mechanism available to sort out or look in to trifles as well. These small torts can

also be taken care of, by the two Acts mentioned above. The Specific Relief Act also provides

for restitution of property. Thus a person who is wrongfully disposed of immovable property13or

of specific movable property14 is entitled to recover the immovable or movable property, as the

case may be. All these examples exhibit a wide range of legal issues and their remedies that are

indeed available in the procedural (as well as substantive) laws of this country. In this context, in

M.C.Mehta v .Union of India, Justice Bhagwati observed-

“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.”

10 Harikrishan and State of Haryana v. Suhbir AIR 1988 SC 2127, p.2131, 1988 INDLAW SC 27.11 Order 39, Code of Civil Procedure Code; S.36 to 42 of the Specific Relief Act12 Supra note 1; at p. 22213 Specific Relief Act, 1963 S. 614 Ibid; Section 7

CHAPTER-4

Critical evaluation

There has been an urgent need in India to reform various sectors of law and torts continue to be

ignored, mostly for the reasons of high costs of tort litigation. Thus it would be wise to cut down

the court fee to appreciate more legislation, rather than giving much importance to the law of

tort. The law of torts is rather underdeveloped in India, the world's largest democracy. Most of

Indian tort law was developed after the British colonization. Yet Hindu law in its various

incarnations and evolutions represents the oldest continuous legal system in the world. For

several millennia Hinduism was the only religious and legal system in India; in the last millennia

it has coexisted with Muslim and Christian legal systems, but it has remained culturally

hegemonic and applies to most Indians in some degree today. When we add to the long duration

of Hindu law the fact of India's great diversity of culture, language, and even political systems

over the ages, the situation appears still more troubling. Moreover, the continued

underdevelopment of Indian tort law is surprising given the impressive commitment to both

compassion and comprehensiveness embodied in the Indian constitution ratified in 1950.There is

an urgent need to codify the tort law in India. Borrowing of English law of tort only won’t do,

we have to make a far greater use of it than we do now for making it serve the purposes for

which the people of other countries aforesaid have used it. The use made of it in these countries

in evidenced not only by the case law in their courts but also by the continual interest evinced by

their lawyers, judges and professors in the development of this branch of law by means of their

contributions to the growing volume of literature on it. We cannot afford to neglect any agency

which can help to regulate individual conduct in conformity with the needs of social peace and

contentment which are the basic factors on which our plans of national advancement can rest. It

is hardly necessary to add that while adopting English rules and theories, we have to make

alterations and adaptations of them which are demanded by conditions in India as observed by

various Indian Judges and also take note of the great changes in this branch of law that are taking

place elsewhere. It has to some extent been overlooked in India. It could have been more

developed but due to some flaws within the system. Yet we cannot say that we haven’t

developed at all. We have in some spheres gone ahead of British law also.

SOME SUGGESTIONS:

Allowing the introduction of evidence during trial about insurance and other benefits an

injured person has received or will receive after the injury.

In cases with multiple defendants, each defendant would be liable for their percentage of

fault only. This abolishes "Picking the Deep Pocket," which can make one who is 10%

culpable 100% liable in damages - just because he can pay.

Caps or limitations on punitive damages and non-economic damages.

Blocking survivors from filing a wrongful death lawsuit if the deceased person recovered

damages while still alive.

Whether lawsuits should be prohibited against products manufactured many years ago.

Preventing lawyers from profiting from punitive damages, as contrary to public policy.

Loser pays. Among Common Law countries, only in the United States is the losing party

not responsible for the legal fees and costs of the prevailing party.

Abolishing civil jury trials and placing damage awards in the hands of judges.

Generally removing incentives for speculative tort litigation.

Getting bar associations and legislatures to end predatory practices and nuisance

litigation. 

Putting an end to "Legislation through Litigation."

Conclusion

After going through all the aspects of tort law and its reform both in India and England

specifically India we can conclude that tort law has evaluated and developed a lot from the time

it began. It has gone through numerous changes which we come across in this project. It may

seem that tort law is to some extent underdeveloped in India compared to other common law

countries, there has been an urgent need to reform various sectors of torts but has made some

commendable development in certain fields and landmark cases like Nagendra Rao, M.C Mehta

are the best examples of it.

REFERENCES:

1. What’s wrong With a Little Tort Reform? by John Hasnas* Copyright 1996 by the Idaho Law Review; John Hasnas Reprinted by permission of the Idaho Law Review Originally published in 32 Idaho Law Review 557 (1996)

2. Law Reform in England Francis A. Vallat The University of Toronto Law Journal, Vol. 2, No. 2. (1938), pp. 233-253. URL-http://links.jstor.org/sici?sici=0042-0220%281938%292%3A2%3C233%3ALRIE%3E2.0.CO%3B2-M

3 .Tort Reform through Damages Law Reform: An American Perspective STEPHEN D SUGARMAN

4. Ratanlal Dhirajlal 25th edition wadhwa group, Nagpur