• brillopedia

AN OVERVIEW OF LAW OF TORTS WITH SPECIAL EMPHASIS ON STRICT AND ABSOLUTE LIABILITY

By

Vaasawa Sharma, Research Scholar, Amity University, Gurugram


Introduction

Tort’ is a Latin term which was extracted from the word ‘tortum’. It simply means civil wrong. According to Salmond, ‘A civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation’.[1] The most important points to be noted while going through the law of torts is; it is uncodified and the judge-made law.[2] Another important fact, remedy granted for such acts is unliquidated damages i.e. which are determined by the court of law and is not pre-determined. The competent court for the cases under tort law is civil court because such suits are civil and Code of Civil Procedure is applied in such cases. Law of tort is a growing concept of Indian legislation though the concept was developed in the UK. New legislation such as the Environmental Protection Act, 1956, Consumer Protection Act, 2019 and Motor Vehicle Act, 2019 also works on the principles established by tort law.

Ingredients

The essentials of law of torts are:

1. Wrongful act or omission

2. Infringement of legal right

3. Remedy

Now, a common question is, ‘whether tort is a violation of a right in rem and right in personam’? The simple answer is, the tort is right in rem. We all know that tort is against an individual but such right is available to the world at large, therefore, the tort is a violation of a right in rem.


Before proceeding further, we should understand a clear cut demarcation between tort and crime. The tort is always against an individual while crime is against the whole society. Meaning thereby, tort affects the society at large, unlike tort. Law of tort is an infringement of a legal right and not a moral or religious right. The action arises only when there is such a violation. For which the maximinjuria sine damnum is applicable which means ‘injury without damage’. The term injury indicates a violation of legal right and damage here means a monetary loss to the plaintiff. The case of Ashby v. White, an officer prevented a citizen from casting a vote in the parliamentary election which straightaway violated his legal right. So in the present case, the court granted compensation to the plaintiff.[3]


Another maxim is Damnum Sine Injuriawhich means ‘manage without injury’. It is the converse of the maxim injuria sine damnum. Where there is only a monetary loss caused to the plaintiff and not legal injury, in such cases the suit will not fall under the category of ‘tort’. Loss in terms of money is not actionable under tort. This maxim was explained in important case law, Gloucester Grammar School Case.[4] In this case, the plaintiff filed a suit against the defendant on the charge that the latter opened a school opposite to the plaintiff’s school at lesser tuition fees. Due to which the plaintiff suffered huge monetary loss. The defendant was not held liable on the ground that there is no violation of the legal right of the plaintiff hence, no remedy arises.

Law of Tort or Law of Torts?

Various jurists and philosophers explained the difference between the two theories. Salmond explained ‘Pigeon Hole Theory’ in this context. According to this theory, torts can be classified into various categories which he compared to the holes of pigeon’s nest. If the wrongful act falls under any of such holes, the said act will come under the category of tort. He was in the favor of ‘law of torts’. Another definition was given by Prof. Winfield, he included all the wrongful acts under the category of tort. So, the said topic was in question for a long time but it was concluded that the law of tort and law of torts both are correct.

Types of Tort

Tort can be classified into:

1. Intentional Tort: Mental element plays an important role in the law of torts. Some of the offences are intentional like false imprisonment, trespassing, assault and battery. In this category, the intention of a person committing the wrongful act should be present.


2. Unintentional tort: It is the opposite concept. The most important example of unintentional tort is negligence where a person commits a wrongful act knowing the repercussions.


Strict Liability and Absolute Liability

Some wrongful acts are so dangerous that they need to be treated strictly. Liability, where the proof of damage is not required, can be termed as a no-fault liability or strict liability. This concept was developed in Rylands v. Fletcher Case (1868). [5] In this case, Rylands hired an independent contractor to build a reservoir on his land. The contractor discovered some old coal shafts under his land. After some days, Ryland’s reservoir busted which caused the huge loss to Fletcher’s mine. The issue raised was ‘whether Rylands would be liable to pay damages to Fletcher’? The House of Lords held Rylands liable for the loss caused to Fletcher. It was further explained that if a person stores anything which is so eminently dangerous for the neighbouring society, if it escapes from his peril, then such a person would be held liable. The rule of strict liability is very important in the law of torts and is very highly interpreted. This imposes a responsibility as well as a liability on the person possessing any hazardous substance. Moreover, the person is held liable even if he is at no fault and sufficient precautions were taken by him.[6]


There are some exceptions of strict liability:

1. Act of God: it is popularly known as vis major. Happenings like earthquakes, floods etc come under the category of the act of god which is an exception of strict liability.


2. Wrongful acts of the third party: An act of the third party i.e. other than the person injured and a person alleged is covered under the category of exception.


3. Plaintiff’s fault: in some cases, the only plaintiff is liable for his acts and he cannot shift his liability to another person.


The major difference between strict liability and absolute liability is the former is inclusive of the exceptions while the latter does not!

The rule of Absolute Liability was evolved in the case of Bhopal Gas Tragedy which was a very famous case in the history of Indian jurisprudence.[7]

Conclusion

With time, Law of Torts gained popularity in the Indian judiciary. The principles are applied in many other Indian cases as well. The tort is a mixture of civil as a well as criminal law. So we cannot confine its study to civil law only. The interest of the victim is a prime consideration for which the provision of paying damages is formulated. One has to pay for the wrongful acts done by him to injure the other person. Our rights are being protected under this law. It covers various topics defined under the Indian Penal Code also such as defamation, trespassing, assault etc. Therefore the scope of tort law is very wide.