Tort law in India

Similar to other common law countries,[1] aspects of tort law have been codified.[2] Furthermore, the Indian Penal Code criminalises certain areas of tort law.[3]

As tort law is a relatively young area of law in India, apart from referring to local judicial precedents, courts have readily referred to case law from other common law jurisdictions, such as UK,[4] Australia,[5] and Canada.[6]

However, attention is given to local socio-cultural practices and conditions in applying foreign legal principles. The legislature have also created statutes to provide for certain social conditions; for example, due to the nature of Indian families, a statute was passed to simplify determination of damages in the event of family members.[7]

Indian courts have held that to constitute assault it is not necessary that there should be some actual hurt caused. A threat constitutes assault.[8]

The ingredients are set out below:[9]

• Making of any gesture or preparation by a person in the presence of another.
• Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on him.

The criteria for battery is equivalent to that of criminal force[10] defined in Section 350 of the Indian Penal Code.[11]

False imprisonment "is the complete deprivation of his liberty for any time, however short, without lawful cause ... There need not be any actual imprisonment in the ordinary sense."[12]

The ingredients of this tort are listed below:[13]

• Restraint must be complete.
• There must be no reasonable condition imposed by occupiers of premises.
• There must be no reasonable and honest belief which would justify the confinement.

In regard to negligence, Indian jurisprudence have approved the approach stated in Ratanlal & Dhirajlal: The Law of Torts,[14][15] laying down three elements:

• A legal duty to exercise "ordinary care and skill".
• The breach of [the] duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
• Resulting in injury to the plaintiff's person or property.

The Indian approach to professional negligence requires that any skilled task requires a skilled professional.[16] Such a professional would be expected to be exercising his skill with reasonable competence.[17]

Professionals may be held liable for negligence on one of two findings:

• He was not possessed of the requisite skill which he professed to have possessed.
• He did not exercise, with reasonable competence in the given case, the skill which he did possess.

The standard to be applied for judging negligence would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.[17] Professional opinion is generally accepted, but courts may rule otherwise if they feel that the opinion is "not reasonable or responsible".[18]

Indian Courts recognise the concept of contributory negligence. Contributory negligence means the failure by a person to use reasonable care for the safety of either of himself or his property, so that he becomes blameworthy in part as an "author of his own wrong".[19]

"[20]

The tort of defamation in India has largely followed the approach taken by the UK. Indian courts have endorsed the defences of absolute[21] and qualified privilege,[22] fair comment[23] and justification.[24] In UK, if the defendant is only successful in proving the truth of some of the several charges against him, the defence of justification might still be available if the charges not proved do not materially injure the reputation.[25] While there is no such provision in India, the law is possibly the same.[26] Recently, incidents of defamation in relation to public figures are highlighted.[27]

However, in India, the weight of the authorities is for discarding between libel and slander and making both of them actionable per se.[26] In UK, only libel and certain types of slander is actionable per se.[28] Criminal libel in UK was abolished in 2010,[29] while both slander and libel remain criminal offences in India,[30] making people liable not just to the extent of damages but also undergoing imprisonment.[31] An injunction may also be granted to stop further publication of defamatory material.[32]

Economic Torts seek to protect a person in relation to his trade, business or livelihood.[33]

While Indian courts has been reluctant to award damages for the economic torts of simple and unlawful conspiracy as well as inducing breach of contract due to the confused state of the law,[34] the court has allowed damages for torts affecting economic interests under the conspiracy to injure, and in doing so, referred to UK authorities on the matter.[35]

The courts have however been more willing to adopt the law in UK in areas such as the tort of deceit,[36] unlawful interference with trade,[37] intimidation,[38] and malicious falsehood.[39]

Land torts seek to prevent interference with land in the possession of another.[40] Interference may take the form of entering land or part of it, or of remaining there after the withdrawal of permission, or of dispossessing the occupant.[33]

Trespass to land is any direct interference with land in the possession of another and is actionable per se.[33] Examples of trespass are unauthorised entry to land, placing things on land and inducing animals to enter.[41] Also, continuing trespass, which is actionable from day to day,[42] occurs when there is continuation of presence after permission is withdrawn.[43] The position taken with regards to the elements of trespass is similar in the UK and India.[44]

Nuisance is a form of lesser interference with land.[33] It may be private or public, and private nuisance has come to cover the conduct of the defendants which affects the claimant's interest in the land.[45] This could be done by:

• Affecting materially his land.
• Affecting his use or enjoyment of it.
• Interfering with servitudes and similar rights over the land.[33]

While private nuisance is always actionable, public nuisance is not. A claimant of public nuisance has to establish special loss over and above the inconvenience suffered by the public in general,[46] as public nuisance is a crime and it would be unreasonable for everyone inconvenienced by it to be allowed to claim.[47] This distinction was followed in India,[48] along with the UK principles of nuisance.[49]

Anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused.[50] It imposes strict liability on certain areas of nuisance law.[33]

While in the UK, this rule is strictly "a remedy for damage to land or interests in land" and "damages for personal injuries are not recoverable under the rule",[51] in India, the courts have developed this rule into a separate area of absolute liability rule, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity.[52] This differs greatly from the UK approach as it includes all kinds of resulting liability other than damage to land.[52]

Another area of tort that developed in India which differs from the UK is the availability of constitutional torts. Creating constitutional torts is a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle.[53] The tort was further entrenched when the court allowed compensation to be awarded as "a remedy available in public law; based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort".Nilabati Behara v State of Orissa (1993) 2 SCC 746.</ref> This approach is vastly different from the approach taken in UK as compensation for damages is not an available public law remedy.[54]

Heads of claims under personal injury

Damages in the law of torts in India are premised on the concept of restitutio ad integrum.[55] India adopts a compensatory method and advocates "full and fair compensation" in all cases.[56]

In determining the quantum of damages, the Indian court will look to similar cases that may enable comparison.[57]

India’s formulation of damages for tort cases is premised on the multiplier method, awarding compensation based on the degree of compromise to the earning ability of the victim.[58] Under the multiplier method, the fair and just amount represents

the number of years' purchase on which the loss of dependency is capitalised. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future. The allowance for immediate lump sum payment the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last.[59]

The multiplier principle is encapsulated in a statutory form for tortious cases involving personal injuries caused by motor vehicles, under the Motor Vehicle Act.[60] However, in so calculating, the court will take into account inflation in calculating damages.[61]

For instances of pecuniary damages with regards to personal injury, the following heads will be taken into account:[62]

• Loss of earning.
• Medical, hospital and nursing expenses.
• The loss of matrimonial prospects.

In instances of non-pecuniary loss, the following will be taken into consideration:[63]

• Loss of expectation of life.
• Loss of amenities or capacity for enjoying life.
• Loss or impairment of physiological function.
• Pain and suffering.

Aggravated damages may be awarded to compensate victims for their wounded feelings in tortious cases in certain cases.[64] These damages are determined by examining if the defendant's conduct aggravated the plaintiff's damage by injuring "feelings of dignity, safety and pride".[65]

In analysing pain and suffering, several factors such as severity of injury, medical treatment required, psychological stress[66] and long-term physical and emotional scars, would be taken into account.[67]

In cases of victims who were unconscious, one must award not only for the "loss of amenities and loss of expectation of life, but also for pain and suffering".[68] Such damages are awarded not as a matter of "solace".[69] This view comes close to that expressed by Lord Scarman in Lim Poh Choo v Camden and Islington Area Health Authority,[70] difference being that an award must be "made even for pain and suffering in case of unconscious plaintiffs".[69] The reason for so doing is that it "looks strange that wrongdoer whose negligence makes the victim unconscious is placed in a more advantageous position than one who inflicts a lesser injury which does not render the victim unconscious".[71]

There are three guiding principles in measuring the quantum of compensation for pain and suffering:[72]

• Amount of compensation awarded must be reasonable and must be assessed with moderation.
• Regard must be had to awards made in comparable cases.
• The sum awarded must to a considerable extent be conventional.

Being influenced by Rookes v Barnard,[73] the India Court ruled that punitive damages can be awarded in only three categories:[74]

• Cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by a servant of the government.
• Cases in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.
• Where provided by statute.

However, this stand has since shifted with an expanding tort jurisdiction. The Supreme Court accepted a committee's suggestion to evolve a "principle of liability – punitive in nature – on account of vandalism and rioting".[75] The reasoning given was that it "would deter people from similar behaviour in the future".[75]

In an environmental tort case, the defendant was made to pay exemplary damages "so that it may act as deterrent for others not to cause pollution in any manner".[76]

The delay in delivery of justice is a major problem plaguing India.[80] This has been attributed to reasons such a low judge to population ratio (1 judge per 100,000 capita, with a small number of courts available),[81] as well as poor administrative governance.[82]

Outmoded procedural laws allow for delaying tactics, such as interlocutory appeals and stay orders.[82] The government has also been accused of employing delay tactics whenever it is a litigant, appealing even when the chance of success is remote.[83] As a result, the system appears to resemble a "sunk cost auction", where litigants invest ever-increasing amounts to stave off higher losses.[78]

Due to the problems noted above, it has been stated that reformation lay with the parliamentarians and legislators. Structural reforms are to be brought about by amendments to legislation, while operational reforms can only be brought about by "a change in mindset".[84]

One of the controversies in Indian tort law concerns the rule on absolute liability. The extremely strict approach, where even acts of God are not recognised as a defence is severely criticised especially since it disregarded the "generally accepted parameter of minimum competence and reasonable care".[85] The implementation of such a rule endangers the growth of science and technical industries, as investors have to take the risk of liability given that there is no defence to the rule.[85]

The judiciary has been criticised for being overly activist and overstepping its jurisdiction. By creating constitutional torts, they are accused of usurping both legislative and administrative functions.[86] Controversy further arose when judges began to read such obligations of the state into Article 21 of the Indian Constitution[87] to impose vicarious liability on the state.[88] However, such judicial activism in India has been used for "achieving social and distributive justice."[89]

• Lata Wadhwa & Ors v State of Bihar & Ors [2001] 3 LRI 1112 : 2001 ALL SCR 501 [1]
• Jacob Mathew v State of Punjab [2005] S.C. 0547.

• Marc Galanter, "Part I Courts, Institutions, and Access to Justice: 'To the Listed Field …': The Myth of Litigious India" (2009) 1 Jindal Global Law Review . 65
• Ramanathan, Usha, Tort Law in India 1994 (PDF), International Environmental Law Research Centre, retrieved 16 October 2011

• P.S. Atchuthen Pillai (1987). Law of Tort, India: Eastern Book Company. ISBN 978-0-7855-3491-4.
• B.L. Babel (2009). " Apkritya Vidhi (Law of Torts in Hindi)अपक्रत्य विद्यि " . ISBN 978-8-1701-2185-5.
• Tort Liability for Environment Claims in India : A Comparative View ( 1st ) Author Name: Charu Sharma ISBN 9788131250693