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Critical Analysis On: How Relevant Is Tort Law Today

Historically, the development of some laws, legal concepts or legal rules were not from acts of parliament or statutes but from various judgments of English courts as well as courts of various common law countries. Tort law is not a result of any act or statutes but it has evolved from various landmark cases of legal history and that is, what makes law of torts one of the most interesting and captivating areas of law as well as an attractive subject for young lawyers.

The meaning of law for the society is recognized from the concept of every wrong has a corresponding remedy. The principle of law of torts which a civil law emerged from the same concept in the 17th century, England and India also follows the same concept of tort.

"Where there is a right, there is a duty" is a concept that we apply in our everyday life which means for example:
If A has a right, B is having a duty to respect A's right but if B does not respect A's right and causes him damages, he is liable. It means that if one person's wrongful act or omission causes damages to another person, one has to provide remedy for the damages he has done.

This is based on a latin maxim, "Ubi Jus Ibi Remedium", which is the very foundation of the law of tort. The purpose of tort is that the victim who's legal right is infringed or violated, is compensated by the person who provided damages in the first place and also to discourage them to do the same violation in future.

Examples of tort can be car accidents, construction accidents, medical malpractices, trespassing, nuisance, defamation, battery or assault, false imprisonment and negligence. For example- A shop owner mopped the floor but forgot to put the wet floor sign and one of the customers slips and gets injured. In this case, the owner is liable and the law of tort makes him provide remedy to the injured customer.

All torts are based on a very famous concept, " fault based liability" but today with the growth of tort law, the area expanded to "no fault liability" like strict liability and absolute liability.

Types Of Wrongful Acts

Wrongful act or wrongful omission can be done intentionally or accidentally or the wrong-doer can be strictly liable.
  1. Intentional Tort
    When a person's wrongful act that results in causing injury to another is done with intention or purpose to do so. In intentional tort, to get compensation, the person must show that the action of the wrong-doer caused him the injury. This injury can be physical harm or mental torture or monetary damages.
    • Battery and Assault
    • False imprisonment
    • Trespass to land or property
    • Trespass to chattels
    • Conversion
    • Unlawful Harassment
    • Invasion of privacy
  2. Negligence
    When one person's carelessness or negligent act causes harm or damage to another, one can be liable of tort of negligence. Main elements are:
    1. Duty of care,
    2. Breach of duty of care,
    3. Harm.
    For Example:
    If Mrs. Sharma is having construction at her place and Ramu, her servant's boy, who was helping her mother with cleaning gets injured due to the construction work. Mrs. Sharma can be held liable for tort of negligence. The claimant must prove that there was a duty of care which had been breached and caused injury. Like-Slip and fall accidents, car accidents, medical malpractice.
  3. Strict Liability
    When an act of a person causes injury to another and the injury is too deep to count the intention or negligence of the claimant, it is a strict liability, example - ultra hazardous activity.

Relevance Of Tort Law

In big and developed countries like England, USA, United Kingdom or Australia, with the growing economies and legal system, the scope of tort as a subject of civil law has evolved to an extent that it accepts new areas of tort law which is codified, provides with the proper ground as off what constitutes a particular tort and also the rates at which the compensation is provided to the injured party is huge, which secures the interest of general public and there legal rights.

The very famous and one of the landmark cases of tort law, Johnsons & Johnsons talc powder cancer case. In 2018, US state of Mississippi- 22 Women claimed that they are suffering from ovarian cancer by using Johnson's talcum powder and about $3.6 billion was awarded to them by the company. The jury said that the talc powder is made from clay minerals composed of silicon and magnesium.

In the case of India, which is still a developing country, tort emerged with the emergence of British India itself. India adopted the British laws after independence and with that also adopted the twisted concept of tort law. Although, enactments like Motor Vehicles Act 1988, The Human Rights Protection act 1998, Consumer Protection act 1986, Environment Protection act 1986 were introduced as a form tortious liability in India but there is no codification of law of tort in our country. The most famous and unfortunate case of M.C. Mehta V. Shri Ram Foods and fertilisers Industries and Union Carbide Corporation vs Union Of India, 1989 "the Bhopal gas tragedy case" introduced a new idea of absolute liability in India which formulated a standard of tort cases in India too.

In the Bhopal gas tragedy, 1984 an approximate 2260 people died and 60,000 injured with the leakage of methyl isocyanate gas from Union Carbide Corporation. People living in Bhopal still suffer from respiratory and birth problems due to the incident that happened years ago. This devastated tragedy not only questioned Indian existing laws but also the scope of tort law in India. It also opened doors for new types of tort law.

The Apex Court in Bhopal gas tragedy case decided that the company would pay 470 million dollars to the injured. This amount was not even half of what was asked in the beginning by the injured parties. This amount was not based on any original data but on the basis of social pressure.

Any good legal system ensures that the injured party or the public will not suffer the same in future but in the case of India, recently in May 2020, the same tragedy occured in Visakhapatnam where 12 people were killed and 100 were affected by a gas leakage from LG Polymers plant after inhaling the poisonous styrene monomer vapour. This is the same case of Bhopal gas tragedy and shows the past unresolved and weakened system of tortious liability can result in more deaths and sufferings for generations to come.

The lack of codification of tort law and proper grounds of what constitutes wrongful omission with the political involvement in judicial background results in harm to not the rich but the general public who are innocents in front of big MNCs and industries.

Even if the system of providing justice gets involved with political and profit making gambling, the lives of innocent Indians are always at stake. In laws of any country, there can be loopholes in the system but in a country like India, if the whole system is corrupt and headed by politics, the scope of any kind of compensation to the victim is very limited.

The relevance of tort law today is wide and organised in foreign countries but in India the scope of tort law is very limited and still developing. In India, where more than it takes years to solve a property issue or any criminal case and the public is scared to visit judicial offices for any cause, it would be unfair to think that the country can handle cases of tort law or even provide that scope to tortious liability.

MNCs and other foreign companies rule Indian economies because the weak legal and political systems are focusing on profit maximization, rather than protecting the interest of individuals. The need is for codification of tort law and providing liability for the wrong-doer. India to involve tort law in the legal system, must first build a judiciary so strong and wide that the belief of the public on justice is given center attention than any political pressure.

As Justice P.N. Bhagwati in M.C. Mehta case quoted that:
" We need to evolve new principles and norms which adequately deal with problems of newly industrialized economies rather than constructing our judicial thinking on the basis of laws in England. We have to build our own jurisprudence".

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