Author Name:   animesh65

This Article is about the effectiveness of the fundamental liability theory in development of tort law....

fundamental liability theory in development of tort law

Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of human life. In a wider sense it includes any rule of human action for example, religious, social, political and moral rules of conduct. However, only those rules of conduct of persons which are protected and enforced by the state do really constitute the law of the land in its strict sense. According to Salmond the “law consists of rules recognized and acted on by courts of justice.”

Definition Of Tort
The term 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. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.

In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages[1]. Some other definitions for tort are given below:

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.[2]

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.[3]
Despite of various attempts an entirely satisfactory definition of tort still awaits its master.

The Nature Of Tort
Our first difficulty in tackling law of torts is to ascertain the contents and boundaries and limits of the subject. Assault, libel, and deceit are torts. Trespass to land and wrongful dealing with goods by trespass, “conversion,” or otherwise are torts. The creation of a nuisance to the special prejudice of any person is a tort. Causing harm by negligence is a tort. So is, in certain cases, the mere failure to prevent accidental harm arising from a state of things which one has brought about for one’s own purposes. Default or miscarriage in certain occupations of a public nature is likewise a tort, although the same facts may constitute a breach of contract, and may, at the option of the aggrieved party, be treated as such.

Tort and crime: A crime is a wrong committed against state: it is not necessarily against a private right. The state can punish people for criminal acts through measures that range from money penalties or fines to imprisonment. Private Citizens can also bring legal action for crimes, but rarely do so.[4]

Torts or Civil wrongs are wrongs committed against private entities such as companies or private citizens, but are not necessarily offences against the state. The courts can remedy a tort by ordering the liable party to correct the wrong, discontinue an act or pay compensation or indemnity[5]

Tort and Contract: The distinction between Tort and Contract says, tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties.[6]

In certain cases the same incident may give rise to liability both in contract and in tort. In Austin v. G.W. Railway[7], a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.

Tortious Liabilities
“Tortious liability arises from the breach of a duty that is fixed in accordance to law and by law: this duty is towards persons generally and its breach is redressible by an action for damages.”[8]
There are two theories with regard to the tortious liability in the law of torts or tort. They are:
1. Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law .
2. Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are Tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying; my duty is to hurt nobody by word or deed. The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.

Therefore, after getting a brief and contextual introduction to Law of Torts with emphasis on Indian context, we can further move on to see the various liabilities that are paving way for development of Tort law and its similar effectiveness in the development as modernization, globalization, and the era of Information technology advancing.

Chapter: 1 General Element in Torts
The main objectives of the law of tort are to protect harms to the properties, body, and prestige of the persons. Being in that essence there are the basic principles in tort that were established, following are the principles itself:

Some General Conditions In Torts:[9]
1. Act Or Omission
To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.

2. Voluntary And Involuntary Acts
A voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment for business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.

3. Malice
Malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.

4. Intention, Motive, Negligence, And Recklessness
The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.

5. Malfeasance, Misfeasance, And Non-Feasance
The term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform.

6. Fault
Liability for tort generally depends upon something done by a man which can be regarded as a fault for the reason that it violates another man’s right. But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher [10]thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.

These are the general elements which give rise to a Tortious Liability. These are the basic or rather say root elements which cover almost all types of Tort be it Defamation, Trespass, conversion, Negligence etc.

Even these general elements cover Tortious Liability arising out of no fault but yet so grievously hurt that arise a liability on the inflictor like Strict liability and Absolute liability. Some of the general elements discussed hereby need an extra and further analysis i.e. role of intention, malice, fault and no fault in paving way for Tortious liability, which we will be discussing in next few chapters.

Chapter: 2 Intention And Tortious
Liability
According to an interpretation intention is a single mental state that cannot be assimilated or reduced to predictability (let along negligence) and as such it deserves special treatment by law. Mental state of the injurer is thus the focus of this view. But when talking of intention, we can have two mental states:

· Intention as a mental condition that involves a plan to take a degree in the future (‘I intent to attend tort classes on Monday’ )
· Intention as a mental condition that involves the desire for a certain state of things (‘I intent to kill person X, which means I am going to act in such a way that person X will die ’)

The two notions of intent leads to different results: the first sense focuses on planning while the latter focuses on a desire to achieve a result, even if that state of mind was formed immediately.

Elements Of Intentional Tort
There are certain elements which are prerequisite for invoking liability of Tortious nature in case of intention giving rise to tort. These are:
Voluntary act- there must be a self willed action that forms a major element in intentional tort.
Mental state- mental element in divided in two sub parts, fulfilling which a liability arises in tort. They are purposeful and knowing.
Motive- Motive is also referred as purposeful which can be conscious desire to achieve the result.
Malice- malice is also referred as knowing which is bad intention to do something and actual knowledge to a substantial certainty that the result will occur.

Note here the word "intentional" is different from its everyday use. The meaning of “intentional” is explained below:

- Sometimes an innocent plea can also lead to a tort of "intentional." For example, A passes the scene of a traffic accident and discovers an unconscious person whose leg is trapped; he then cuts off the victim’s leg with an electric saw so that the victim may be sent to hospital. It turns out the victim’s leg was not trapped at all, and only needed some effort to extract him from the car. A had innocent motive and did not wish to injure anyone, but in the eyes of tort law, he has intentionally (i.e. not accidentally) severed the victim’s leg without permission, thus constituting an intentional tort. On the other hand, if A did not saw off the victim’s leg but instead accidentally severed it when pulling the victim from the car, this is not an intentional tort (but may be an unintentional one). .
- Sometimes, even with malicious intent cannot take a wrongful "intentional." For example, see Bradford Pickles[11] the plaintiff and defendant owned neighbouring pieces of land, the defendant being in the upstream while the plaintiff in the downstream. The plaintiff had a reservoir on his land; to spite the plaintiff, the defendant drew the water from his own land leaving none for the plaintiff. The House of Lords held that, as the defendant had not drawn water from the plaintiff’s land and one had freedom to do as he wished on his own land, there was no trespass to property despite the malicious intent. .
- "intentional", can be an objective and not subjective. In Wilkinson v. Downton[12], the defendant falsely represented plaintiff that her husband was seriously injured, making him suffer nervous shock. Even if the defendant does not feel like a joke, the court held that such conduct was an intentional illegal. The lie was that "intentionally" not negligent and that the defendant should reasonably have foreseen that this would cause the plaintiff harm.

Examples Of Intentional Tort
Examples of intentional torts are: Assault, Battery, Trespass to land, and Trespass to chattels, False Imprisonment, Intentional Infliction of Emotional Distress, and conversance.

The main elements behind these all tort are same and they are:

Purposeful: conscious desire to achieve result

Knowing: knowledge to a substantial certainty that result will occur

ALSO Reckless: Actual awareness of a substantial risk that the result will occur

Chapter: 3 Fault And No Fault Theory
Fault-It is well known that intention, negligence, malice and motive with respect to an act or omission which infringes a right recognised by law plays a very vital role in arising liability.

One of the examples of Fault is Negligence.

Negligence implies absence of intention to cause the harm complained of. It may be defined as unreasonable conduct, i.e. conduct which a reasonable man would avoid on the ground that it involves undue risk of harm to another. Such conduct when followed by harm to the letter gives rise to liability for negligence.

Not every accident producing injury gives rise to liability for negligence. Some accidents cannot be avoided even with the exercise of reasonable care. An accident that results from a defendant's sudden and unexpected physical ailment, such as a seizure or a blackout, generally relieves the defendant of liability for harm caused during his period of unconsciousness.[13]
NO FAULT- No fault liability exist where there is a liability without any wrong on the behalf of defendant.

No Fault is categorised in two parts:
1. Strict liability
2. Absolute liability

Strict Liability-  In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts or omissions regardless of culpability (including fault in criminal law terms, typically the presence of mens rea).[14]

In tort law, strict liability is the imposition of liability on a party without finding a fault (such as negligence or Tortious intent). The plaintiff only needs to proof that the tort occurred and that the defendant was responsible. Strict liability is imposed for legal infractions and that are neither good faith nor the fact that the defendant took all possible precautions are valid defences. It often implies to those engaged in hazardous or inherently dangerous ventures. The law includes strict liability to situations it considers to be inherently dangerous. It discourages reckless behaviour and needless loss by forcing potential defendants to take every possible precaution.

Example regarding strict liability-
Rylands V. Fletcher[15]: The occupier of the land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent itsescape and is liable for the direct consequences of its escape even if he has not been guilty of any negligence.

Absolute Liability- This has come from modern law of tort which means liability without fault, i.e. liability without intention or negligence. Liability of this kind is exceptional under common law as the ordinary rule is that a person is only liable for harm due to his intention or negligence, and not for other kind of harm which would be merely an inevitable accident.

M.C. Mehta V. Union Of India[16]: An enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity.

Apart from the cases of strict liability, the rule that damages allowable and proportioned to the damage or loss and not fault also negatives the theory of fault.

For example- slight negligence may unfortunately cause severe damage to a plaintiff and the defendant may have to pay a huge amount as compensation; whereas gross negligence may fortunately cause insignificant damage and the plaintiff may then be allowed only nominal compensation.

Thus, at one extremity are the situations where damage though intentionally caused is not actionable and at the other extremity are the situations where the law imposes strict liability without any fault of the defendant. Between these two extremities lies the area where existence of fault in the form of intention, negligence or motive is essential to fasten liability on the wrong doer.

Chapter: 4 Effectiveness Of Fundamental
Liability In Expansion Of Tort
In view of the above mentioned and explained chapters it will not out of place here to explain that in this era of globalization and industrialization, the modern victimology in cases of tort is increasing day and night and thus leading to development of tort. Though everyday a kind of new tort arises in set forth corner of this world but there are still liabilities arising due to their wrong committed and this is possible on due to fundamentalism property of liability in law of tort.

Winfield gave a theory on Tortious liability that makes the wrong doer liable for all his actions of civil wrong; his theory was different and had a vast purview than the Salmond’s theory. This theory was given way back but in this emerging socio-legal and socio-economical world still this theory of fundamental liability holds well.

In previous chapters we dealt with some common elements of tort, then intentions which gave rise to tort and then liability due to fault and due to no fault of the feasor. We dealt which all such topics because these all are the basic or rather we can say that they are the roots which gave a way for birth of Tortious liability. The role of intention, motive, malice, recklessness, fault, no fault, act, and omission are the fundamental things violation of which gives rise to a Tortious liability.

Effectiveness And Development Of Tort Law
Albeit this theory of fundamentalism is from way back time but this is still reliable and effective in the Tortious liability[17].

Now let us look into some newly developed torts and how these fundamental elements give rise to Tortious liability to this newly developed tort.

1. Cyber Crimes And Tort
Cyber crimes are the crimes which targets the computer database and systems. They usually use the computer as a tool, target, or both for their unlawful act either to gain information which can result in heavy loss/damage to the owner of that intangible sensitive information. Internet is one of the means by which the offenders can gain such price sensitive information of companies, firms, individuals, banks, intellectual property crimes (such as stealing new product plans, its description, market programmed plans, list of customers etc.), selling illegal articles, pornography etc. this is done through many methods such as phishing, spoofing, pharming, internet phishing, wire transfer etc. and use it to their own advantage without the consent of the individual.[18]

Different Types of Cyber Tort:
Cyber Stalking- Cyber stalking occurs when a person is followed and persuaded online. In other words, their privacy is invaded. It is a form of harassment, and can disrupt the life of the victim leaving them feeling afraid and threatened.[19]

Cyber Breach of Privacy- With the advent of multi channel televisions all over the world, and fast spreading internet network, the privacy of an ordinary man is increasingly under threat. Breach of privacy is a kind of cyber tort which affects a common man.[20]

Cyber Obscenity- Cyber space offers a very wide range of pornography, and makes children and women vulnerable of trafficking. This also includes child pornography and sexting and internet rape.[21]

Cyber Defamation- Due to expansiveness of the internet for a, defamation is quite possible. Cyber defamation is statements that are unflattering, annoying, irksome, embarrassing or hurt one's feelings are not actionable.[22]

Establishment of Tortious liability in Cyber Crimes:
Cyber crime is a kind of crime in which generally offenders of crimes are generally hidden. Tracking cyber criminals requires a proper law enforcing agency through cyber border co-operation of governments, businesses and institutions of other countries.[23] Basic liability in cyber crime is established through the principle of neighbourhood established from the case of donoghue v. stevenson[24]. The major liability in cyber tort is through Information Technology Act, 2000 (as amended)

2. Professional Negligence
Professional negligence, which may also be referred to as malpractice, is negligence committed by someone who is presented with more skills and training than the average person. As a consequence of being more highly skilled, professionals are held to a higher standard and are expected to be able to complete tasks related to their training in a competent way. Failure to exercise due caution is considered negligence and clients can sue for damages if they have been injured as a result of negligent care.[25]
Types of professional negligence are:

· Medical negligence
· Product liability negligence
· Lawyer negligence
· Police misconduct
· Nursing home abuse

As its name only convey how its liability arises, this is a pure case of negligence where Tortious liability arises due to breach of reasonable duty where there was duty to care.[26]

3. Domestic Violence
Domestic violence, also known as domestic abuse, spousal abuse, child abuse or intimate partner violence (IPV), can be broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation.[27]
The protection of Women from Domestic Violence Act 2005 provides new civil remedies for the victims of domestic violence. This law recognizes new set of rights and obligations in the nature of torts, to secure women in their own families. The main thrust of the law is to provide monetary in shape of damages, compensation, maintaince, exemplary cost and penalties.[28]
In the case of Domestic Violence, Tortious liability arises due intention. Some conditions are required for intention which are totally employed by Domestic Violence, conditions are: motive, malice, recklessness.

4. Tort Of Modern Victimology
· Motor Vehicles Act: The Tortious liability for negligence or absence of care became a running theme of Motor vehicle Act, where fault liability and strict liability (also called no fault liability) are covered.[29]
The Motor Vehicle Act provide for three kinds of Liabilities:

§ Liability towards injuries to third party on no fault basis

§ Liability towards injuries based on negligence, fault liability

§ Provision for some relief in hit and run case, recklessness[30]

· Victimology of Human Rights- Torture: Torture is one of the most frequent human right violations which are again a kind of intentional tort. Torture is due to malice, motive and recklessness.

· Custodial Trauma: Arrest and detention in police custody creates a psychological impact on the detenues. The anxiety, fear and stress of being arrested and detained, cuases a mental pressure or trauma on detenues. This again is actionable in tort for which detenues can get compensation for the mental trauma suffered, this again is an emerging tort covered under fundamental liability give rise to Tortious liability.

Thus, there are many other conditions and new emerging torts like Tort relating to Insurance, law of arrest, environmental tort law et cetra. For which one can bring actionable tort, but the basis on which he will be relying will be again same that is of fundamental theory of liability. For above mentioned laws it is quite clear about the effectiveness of fundamental liability theory in development of tort law.

Conclusion
We live in an age of change and revolution in several spheres of our life, thought and activity, and law is no exception to them. The process of change is evident in different branches of law and more so in tort law, which is a live branch of law in the process of expansion to meet modern needs. Evidence of this is afforded by large and growing volume of litigation and case-law in actions for torts of various kinds in particular, those of defamation, negligence and nuisance.

India, with an independent judiciary with ‘judicial activism’ has contributed much to development of tort law. Development of absolute liability in M.C.Mehta case, and Supreme Court’s direction on Multi National corporation liability is a vibrant example. Recognition of government tort by employees of government, principles on legality of state, evolution of tort on sexual harassment are very significant cases in development of tort law.

The enactment of Public Liability Insurance Act 1991, Environment Protection act 1986, Consumer Protection Act 1986, Pre-Natal Diagnostic Techniques Regulation and Prevention of Misuse Act 1994 are few of the latest developed law which substantiate the tenet of Tortious Liability. The Motor Vehicle Act 1988 and judicial renderings continue to conduce to advancement of Accidental Tort. The unfortunate Bhopal case Tragedy has triggered a new path for tort, leading to environment torts, toxic torts, governmental torts, MNC’s liability et cetra.

In views of the facts above-mentioned, we can very safely conclude and sum up that, there is a lot of contribution of fundamental liability in development of tort law as however the tort is the applicability of fundamental liability cannot be denied. It is due to fundamental liability rationale that all the tort are being covered under it and the purpose of judiciary, to impart justice equally and fairly to all, is also being solved simultaneously.
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[1] Definition of tort by Lindsey and Clerk
[2] This is the definition given by Salmond himself (see 7th Ed.). The Editor of the 15th edition of Salmond’s Law of Torts has modified the defiiniton by qualifying the word action by the phrase common law, and damages by the term unliquidated (See 15th Ed., p.15), cited in Durga Das Basu, The Law of Torts 12th Edition, 5, Kamala Law House, 2006, Calcutta
[3] Winfield and Jolowicz, Torts, 17th Ed., p.5-6
[4] Ratanlal and Dheerajlal, Law of Torts, Ed.25,2009, P.10-11
[5] ibid
[6] http://www.legalserviceindia.com/article/l175-Torts-in-India.html
[7] 1867 LR 2 QB 442 10
[8] Winfield and Jolowicz, Torts, 17th Ed., p.5-6
[9] http://www.legalserviceindia.com/article/l175-Torts-in-India.html, date-10/10/2010, time-8:30pm
[10] (1868) LR 3 HL 330
[11] [1895] AC 587 (HL),
[12] [1897] 2 QB 57
[13] http://law.jrank.org/pages/10819/Tort-Law-Negligence.html, Date- 20/10/2010, time- 8:30 pm
[14] http://en.wikipedia.org/wiki/Strict_liability date- 20/10/2010, time- 9:00pm
[15] [1868] UKHL 1
[16] AIR 1987 SC 1086
[17] A Lakshinath and M Sridhar, the laws of Torts, 10th Ed., p.25-26
[18] http://www.legalserviceindia.com/article/l146-Cyber-Crime-And-Law.html date- 24/10/2010, time- 6:30 pm
[19] A Lakshinath and M Sridhar, the laws of Torts, 10th Ed., p.43-46
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] http://www.legalserviceindia.com/article/l146-Cyber-Crime-And-Law.html date- 24/10/2010, time- 6:30 pm
[24] [1932] UKHL 100
[25] http://www.wisegeek.com/what-is-professional-negligence.htm DATE-24/10/2010, time- 8:30 pm
[26] State of Haryana vs. Smt. Santra, AIR 2000 SC 3335
[27] Lyn Shipway - 2004 - Family & Relationships
[28] A Lakshinath and M Sridhar, the laws of Torts, 10th Ed., p.110
[29] A Lakshinath and M Sridhar, the laws of Torts, 10th Ed., p.154-156
[30] Ibid.

The  author can be reached at: animesh65@legalserviceindia.com

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