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Judicial Widening Of Tort Responsibility

According to Sir Henry Maine [1], the penal law of ancient communities is not the law of crimes but the law of wrongs, which is commonly known in the modern world as the Law of Tort. Wrongs may be civil or criminal in nature. While criminal wrongs or crimes call for punitive or reformative remedies, civil wrongs call for mostly restorative remedies.

Tort is a kind of civil wrong. Civil wrong is either a breach of a duty a person owed to another or a violation of another's legal right, for which action may be brought by means of civil proceedings. However,to be so actionable , the must cause some injury or harm. Injury or harm is the violation of legal right of a person causing any loss or detriment to a person.

Tort can thus be defined as an act or omission that gives rise to injury or harm to another for which the courts impose liability on the tortfeasor (ie. The perpetrator of such harm or injury) and provide civil remedy to the victim, generally in the form of damages payable, though other civil remedies such as injunction may be granted too.

The concepts of Civil Wrong, Injury or Harm and Civil remedy form the core mechanism of Tort action, where the Injury or harm gives birth to the cause of action in each case for which determination of liability is of utmost importance.

Judicial widening of tort responsibility

Tort , being a civil wrong is mostly governed by uncodified yet distinct principles that are borrowed from the Common Law Doctrines. That's contrary to criminal wrongs which, being more pervasive in the society, has codified laws which lay down specific punishments and criminal remedies. Being governed by a body of doctrines, the extent and existence of tortious liability in most cases, depend upon judicial deliberations and interpretations of the said doctrines and occasionally, judicial addition to it. The kinds of tort liabilities incurred are as follows:-

1. Absolute and Strict tortious liability

The rule of absolute liability holds an entity absolutely liable for a tort caused from his actions and the rule of strict liability holds an entity strictly liable for tortious acts or omissions of his own.

Rylands v. Fletcher[2]

In this case, Fletcher was running a coal mine under a lease. On the neighbouring land, Rylands erected a reservoir for storing water .After the construction of the reservoir was over; while it was partly filled with water, the vertical shafts gave way and burst downwards and flooded the old passages and ultimately the plaintiffs mine. The case was decided in 1868 and for the first time laid down the rule of absolute liability.

In the instant case, the contractors chanced upon the old shafts but did not inform the Defendant, which was actually negligence in their part. However, the liability was affixed on the defendants by the court who laid down the conditions for incurring absolute liability-

Person who, for his own purposes , brings on his lands and collects and keeps there, anything that is likely to do mischief upon its escape , must keep it at his own peril and if not, shall be prima facie answerable for all damage resulting from its escape.

M.C Mehta v. Union of India [3]

Clear distinction was laid down in this case between the rules of strict and absolute liability:
  • Only those enterprises undertaking innately dangerous activity shall be liable absolutely while others, strictly
  • Escape as envisaged may not be from ones land, the rule shall apply when people have been injured inside or even outside the premises
  • The rule of absolute liability has no exception or defence that there were no negligence on his part or that he took all reasonable care.
  • Quantum of damages depend on the magnitude and economic capacity of the erring enterprise

Vicarious Tortious liability

Vicarious liability which means taking up of liability for acts of another, follows from the maxim Qui facit per alium facit per se which means that he who acts through another is deemed to do it himself. Tort committed by one might give rise to liability of another where one is deemed to have “acted through another”. Such dissociation between tortfeasor and liability-holder would be justified in certain cases of relationship between them -

A. Master-Servant Relationship or Employer-Employee Relationship

Kasturi Lal Ralia Ram Jain V. State Of Uttar Pradesh. [4]

In this case the tortious act was committed by the servant in discharge of non-sovereign functions.

It was held that the State would be liable for the acts done by servant. However, in order to exempt the State from liability it is necessary that the statutory functions which are exercised by the Government servants were exercised by way of delegation of the sovereign power of the State.

State of Rajasthan vs. Mst. Vidhyawati [5]

In the suit, by the widow of a pedestrian (deceased), against the State of Rajasthan for damages arising from the death of his spouse due to rash driving of a government vehicle on its way back from the repair-shop, the Supreme Court held that for acts done in the course of employment but not in connection with sovereign powers of the State, State like any other employer is vicariously liable under the doctrine of respondent superior.

B. Principal-Agent Relationship

Lakshminarayan Ram Gopal and Son vs. The Government of Hyderabad [6]
The mills registered at Hyderabad appointed Lakshminarayan co. as their agent for 30 years , during which the agent earned 2.5% commission on the business done. The appellant refused to pay the taxes on the earnings of the agent of the Mills.

The Supreme Court held that the appellant was an agent and money earned was taxable commission hence liability to pay the taxes was of the Mills for being their employer.

Liability arising from tort of negligence
Negligence can be defined as not following the duty of care that one is supposed to, in his conduct, by way of an act or omission causing any harm or injury to another. The liability befalls on the tortfeasor.

Donoghue v. Stevenson [7]

In this case, the appellant drank a bottle of ginger beer which she bought in a café, which was in turn, bought from a retailer by the café-owner. It contained the decomposed body remains of a snail. As the bottle was of dark opaque glass sealed with a metal cap its contents could not be a ascertained by inspection. The plaintiff brought an action against the manufacturer of the beer to recover damages which she suffered due to serious effects on her health.

The House of Lords, allowed the bypass of the foundational issue that the contractual relationship existed between the customer and the café-owner and hence the manufacturer was outside the privity of contract and cannot be sued by the customer. It was held that the manufacturer of the bottle was responsible for his negligence towards the plaintiff.

Rural Transport Service v. Bezlum Bibi (1980)

Here, a passenger bus was overloaded and yet the conductor invited passengers on the roof of the bus to travel. On its way, while overtaking a cart, the bus swerved, a passenger on the roof was struck by an overhanging branch of a tree, fell down and received multiple injuries and in the end succumbed to them.

The act of conductor ( inviting the people of travel on the roof of the bus) and of the driver(act of leaving the metallic track by swerving on the right, close to the tree) was held to be rash and negligent. The consequences of such an act, was therefore, foreseeable and they were found liable for negligence.

4. Tortious liability in cases of damnum sine injuria or injuria sine damnum
Liability in tort arises only where injuria has occurred ie. an injury to a legal right of another, ie. injuria sine damnum gives rise to liability in tort and civil action may lie, but damnum sine injuria , as in damages without injury to legal right is not actionable.

Gloucester Grammar School case(1411) [8]

In the case of Gloucester Grammar School, the defendant was a school teacher in the plaintiff's school. Due to some dispute, the defendant left the plaintiff's school and set up a rival school next to that of the plaintiff. The plaintiff sued the defendant for the monetary loss caused because of the competition.

It was held that the defendant was not liable for setting up school. There lies no ground of action where the monetary loss caused , violates no legal right.

Hanker J. said 'Damnum may be absque injuria as if I have a mill and my neighbor builds another mill whereby the profits of my mill is diminished… but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.'

Bhim Singh v. State of Jammu and Kashmir (1984) [9]

Mr. Bhim Singh, an MLA of Jammu and Kashmir was arrested and detained in police custody; thereby, deliberately prevented from attending the sessions of the legislative assembly.
The court directed the first respondent to pay exemplary damages of Rupees Fifty thousand by way of consequential relief for the tort of false imprisonment.

This Indian case serves as an example of application of the principle injuria sine damnum.

His freedom of movement was restricted, his right to liberty was infringed without due process of law; though he did not suffer particular physical or monetary injuries, hence he was entitled to damages.

5. Tortious liabilty arising from assault, battery, mayhem

Battery , assault and mayhem can be described as ‘trespasses to the body' under the Common Law. The Indian Penal Code,1860 provides the definitions for assault and battery but uses a different term than ‘battery' as used in Common law.

Criminal force [10].-Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

Assault [11]-Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or prepa­ration will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Explanation.-Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those amount to an assault.
Several jurisdictions do not consider the difference between mayhem and battery, but rather count mayhem as a form of ‘aggravated battery' eg as in Japan[12]. The United States considers mayhem as a felony.

The scope of liability in these cases of tort can be understood through judicial recourse-

Vosburg v. Putney [13]
The defendant and plaintiff were school students , seated opposite each other. The defendant kicked the plaintiff slightly below the knee, playfully. The victim felt pain, few moments later. The plaintiff had actually undergone a surgery in the same place only a few weeks earlier. The plaintiff became severely ill subsequently and developed a weakness in his leg for the rest of his life. The plaintiff was awarded damages and the perpetrator was found liable of committing battery.

Hopper v. Reeve [14]
It was held that if a person is about to sit on a chair and the chair is pulled, there is an assault as long as he takes to fall to the ground. The moment he makes contact with the ground, it will become a battery.

Thus this case differentiated between battery and assault.

Garrett V. Taylor [15]
It was held that a quarryman had a cause of action against the defendant who had caused the plaintiff's customers to discontinue buying the quarried stone by threatening them with ‘mayhem'.

6. Liability from Constitutional Tort

The rationale for sovereign immunity that originated from the legal maxim Rex non potest peccare (The king can do no wrong) was an ancient and fundamental principle of the English law. It meant that if a tort was committed by the king or the king's servant in the course of employment, the injured had no right to sue the king under the vicarious liability. This immunity was only available in relation to torts, but not for breach of contract and recovery of property. The Crown Proceeding Act, 1947 abolished the maxim and made way for liability of the king to be sued for tortious acts committed by him or under his name under the principle of Respondent Superior.

After sovereignty of india was assumed by the Crown from the hands of East India Company , the British Parliament enacted , Government of India Act, 1858 and the Government of India Act, 1915 under which the Secretary of India in Council was declared a body corporate for the purpose of suing and being sued. This was a marked departure from doctrine of sovereign immunity to sovereign accountability.

This provision has been incorporated in Article 300 (i) of the Constitution of India:

The recognition of the liability of the state and dismantling the defence of sovereign immunity has been the aims of constitutional tort which began with the case of Nilabati Behera [16] wherein human rights, fundamental rights, human dignity had been given primacy over the protection of tortious state acts under the protection of sovereign immunity.

The Constitutional Tort is the kind of tort for which the state can be held vicariously liable for violation of any constitutional right of any citizen or individual.

Kamla Devi V. NCT of Delhi [17]
Delhi High Court held that when a person dies in police custody and the dead body bears mark of violence or circumstances indicate so, then courts, acting under Article 226 of the Constitution of India will be justified in granting compensation to victim's family or dependents

State Of Andhra Pradesh V. Challa Ramkrishna Reddy [18]
The convict and his son died in custody from explosion of a bomb hurled into his cell. Despite previous communications to the sub-inspector by them about the death threats that they had received, no action was taken.The state tried to resist liability on the grounds of limitation and sovereign immunity. The court held that where a public officer commits a tort, (eg. tort of negligence as in instant case) even when in pursuance of an Act of Legislature or under good faith, the officer will be held liable and no protection would be given to the officer.

State Of Gujrat V. Govindbhai Jhakhubhai [19]
A constable had assaulted a person during his course of duty resulting in loss of limb of the victim. the State was held vicariously liable and doctrine of sovereignty was rejected.

Bhim Singh V. State Of J&K [20]
Mr. Bhim Singh an MLA of Jammu and Kashmir was arrested and detained in police custody and was deliberately prevented from attending the sessions of the legislative assembly to be held on 11th September 1985, on the allegation that a case under section 153A of Ranbir Penal Code was registered against him for delivering an inflammatory speech at the public meeting held near parade ground, Jammu on 8th September 1985.

He has not produced before the Magistrate till 13th September. As his whereabouts were not known his wife filed a writ of Habeas Corpus before the Supreme Court. On the inquiry of the SupremeCourt, it was found that Mr. Bhim Singh was illegally imprisoned and detained by the police personnel, with mischievous and malicious intent and it was certainly was a gross violation of the constitutional right of the accused person under article 21 and 22(2). Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session.

The court held that the police officers who are the custodians of law and order should have the greatest respect for personal liberty of citizens and Custodians of law and order should not become depredators of civil liberties. The court directed the first respondent to pay exemplary damages of Rupees Fifty thousand by way of consequential relief for the tort of illegal detention.

The expansion of the kinds of tortious liabilities, has been done by the judiciary as can be perceived from the judicial precedents, which increases the statistical chance of incurring of said liabilities by the tort-feasors. This in turn, brings about the need for insurance to ensure redressals for the victim and bearable burden for the tort-feasor .

Enactments such as the Public Liability Insurance Act, 1991, Environment Protection Act, 1986, Consumer Protection Act, 2019, The Protection Of Human Rights Act, 1993 And Pre-Natal Diagnostics Techniques Regulations And Prevention Of Misuse Act, 1994 embody the new principles of tortious liability in india.

  1. Henry Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas ( Cambridge University Press, Cambridge, 2012).
  2. (1868) LR 3 HL 330
  3. 1987 SCR (1) 819: AIR 1987 965
  4. AIR 1965 SC 1039
  5. Decided on 2.2.1962
  6. Decided on 1 April 1954
  7. (1932) AC 598,
  8. (1410) Y.B 11 Hen.IV ,f.47, P.i 19
  9. AIR 1986 SC 494
  10. Section 350, INDIAN PENAL CODE.1860
  11. Section 351, IPC 1860.
  12. Jonathan H. X. Lee , Asian American History Day by Day: A Reference Guide to Events pg.398 (ABC-CLIO Publications, Japan, 2018)
  13. 80 Wis. 523; 50 N.W 403
  14. (1817) Taunt. 698
  15. (1676) 81 ER 726
  16. Nilabati Behera v. State of Orissa (1993) 2 SCC 373
  17. 2000 Cri. LJ 4867 (2000): 84 DLT 91 at 105
  18. (2000) 5 SCC 712
  19. 2000 ACJ 1305
  20. AIR 1986 SC 494

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