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The Nature Of A Tort
The word Tort comes from the Latin expression ‘Tortum’, which means to twist. It includes such conducts, which are not straight or lawful, but are twisted or unlawful. In the broader sense, tort can be said to be equivalent to the English term ‘wrong’. |
So far no exact definition of tort has been incorporated and the process of development of this branch of law is still continuing. It is easier to describe tort than to define it. We may define tort as a civil wrong, as opposed to a criminal wrong, which is redressible by an action for damages and which is other than a mere breach of contract or breach of trust
Damages awarded in tort are 'unliquidated' in nature, which means that such amount is not determined previously, but the determination of the same is left to the discretion of the court.
In the words of Sir Frederick Pollock: Every tort is an act or omission, which is related in one of the following ways to harm, suffered by a determinate person. It may be an act, which, without lawful justification or excuse, is intended by the agent to cause harm, and actually causes the harm complained of. It may be an act in itself contrary to law, or even an omission of any legal duty, which causes harm though not intended by the person so acting or omitting. Moreover, it may be an act involving the violation of absolute right and treated as wrongful without regard to the actor’s intention or knowledge.
It may also be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented. Further, it may, in some cases, consist merely in not avoiding or preventing harm, which the party was bound absolutely or within limits, to avoid or prevent.
a) Development of law of Torts in India
The law of torts in India is mainly the English law of torts which is based on the principles of the ‘common law’. This was made suitable to the Indian conditions in accordance with the principles of justice, equity and good conscience. However, the application of tort laws in India is not a very regular event and one can even go to the extent of commenting that tort as a law in India is far from being looked upon as a major branch of law and litigation. In the Indian legal system, the concept of ‘punishment’ occupies a more prominent place than ‘compensation’ for wrongs.
It has been argued that the development of law of tort in Indian need not be on the same lines as in England.
In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
AIR 1987 SC 1086
WP 12739/1985 (20.12.1986) (Oleum Gas Leak Case)
In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, Justice Sahai., observed, “Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by court would be conducive”