INTRODUCTION
Winfield’s definition of tort was as follows: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
The tort is a legal term representing a violation where one person induces damage, injury, or harm to another person. The violation may emerge from intentional actions, a breach of duty as in negligence, or a breach of statutes.
The party that perpetrates the tort is called the tortfeasor. A tortfeasor incites tort liability, which means that they will have to compensate the victim for the harm that they bred them. In other words, the tortfeasor who is perceived to be “liable” or responsible for a person’s injuries will likely be obligated to pay damages.
Under most tort laws, the injury sustained by the plaintiff does not have to be physical. A tortfeasor may be asked to pay damages for additional types of harm, including emotional distress or a violation of personal rights.
The author will endeavour to explain the kinds of tortious liabilities and the concerned remedies in this article.
KINDS OF TORTIOUS LIABILITY
I. VICARIOUS LIABILITY
According to Pollok, I am responsible for the wrongful acts and not for the of my servant or agent because he does my act and therefore, it is my duty to see that he must do my act keeping in view the security of others.
Vicarious liability means the liability of a person for an act committed by another person and such liability arises due to the nature of the relation between the two. E.g., A is a driver who works for B and while driving B’s car for taking him to his office, he hits C, a pedestrian due to his negligence in driving. In such a case even though B was not driving the car he will still be liable for the accident which was caused due to negligence of A.
CONSTITUENTS OF VICARIOUS LIABILITY
So, the constituents of vicarious liability are:
1. There must be a relationship of a certain kind.
2. The wrongful act must be related to the relationship in a certain way.
3. The wrong has been done within the course of employment.
RELATIONS IN WHICH VICARIOUS LIABILITY ARISES
1. Master and Servant.
In a Master-Servant relationship, the master employs the services of the servant and he works on the command of the master and thus a special relation exists between the two and in case of a tort committed by the servant, his master is also held liable.
There are many cases in which a servant does an act for his master and thus in law, it is deemed that the master was doing that act himself, therefore if the servant commits an unlawful act the master was doing the act himself if the servant commits an unlawful act the master will also be held liable for the same. This liability of the master is based on the following two maxims:
A. Qui facit per alium facit per se:
It means that whenever a person gets something upon by another person then the person is viewed to be doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to drive them for trade and in case one of his drivers gets into an accident because of his rash driving, then even though A did not drive the truck himself, he will be liable for the accident.
B. Respondent Superior:
It means that the superior should be held responsible for the acts done by his subordinate.
These two maxims have played a significant role in the development of the law of vicarious liability of the master.
- Essentials of Vicarious Liability in Master-Servant Relationship
These essential conditions have to be followed for the vicarious liability of the master to arise:
1. The servant has committed an act that amounts to a tort.
2. Such a tortious act is committed by the servant during his employment under the master.
- Various ways in which liability of the Master arises:
1. Wrong done as a natural consequence of an act by Servant for Master with due care
2. Wrong due to Negligence of Worker
3. Wrong by excess or mistaken execution of a lawful authority
4. A wrong committed willfully by a servant to serve the purpose of the master.
5. Wrong by Servant’s Fraudulent Act.
2. Partners in a Partnership Firm.
The relationship between partners is that of principal and agent. For the tort committed by any partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as a guilty partner. The liability of each partner is joint and several.
3. Principal and Agent.
Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorized it. it is based on the general principle that the act of an agent is the act of the principal. For any act authorized by the principal and done by the agent, both of them are liable. Their liability is joint and several. The authority to do the act may be express or implied.
4. Employer and Independent Contractor
In general, the employer is not liable merely because the independent contractor commits a tort in the course of his employment. However, the employer is liable only if he deemed to have committed a tort, this may happen in one of the following three ways:
1. When the employer authorizes him to commit a tort;
2. In torts of strict liability;
3. Negligence of independent contractor
4. State and its employees and servants: In England, the Crown is vicariously liable for the torts of its servant.
In India, the Government is liable for the acts and defaults, of its employees and servants, done in the exercise of its non-sovereign functions. If it is a sovereign function, it could claim immunity from the vicarious liability, otherwise not. Generally, the activities of commercial nature or those which are carried out by the private individuals are termed as non-sovereign functions.
5. Company and its Directors
6. Firm and its Partners
7. Guardian and Ward.
II. STRICT AND ABSOLUTE LIABILITY
There are situations when a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause them harm, or sometimes he may even have made some positive efforts to evert the same. In this connection, the rules laid down in two cases, firstly, in the decision of the House of Lords in Rylands vs. Fletcher (1868) and, secondly, in the decision of the Supreme Court of India in M.C. Mehta vs. Union of India (1987) may be noted.
The rule laid down in Rylands vs. Fletcher is generally known as the “Rule of Strict Liability”. While formulating the rule in M.C. Mehta vs. Union of India, the Supreme Court itself termed the liability recognized in this case as “Rule of Absolute Liability”.
- The Rule of Strict Liability
In Rylands vs. Fletcher (1868), the House of Lords laid down the rule of ‘No fault ‘liability. The liability recognized was Strict Liability, i.e., even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable under the rule.
In Rylands vs. Fletcher, THE DEFENDANT got a reservoir constructed through independent contractors over his land for providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on the adjoining land. The defendant did not know of the shafts and had not been negligent although the independent contractors had been. Even though the defendant had not been negligent, he was held liable.
For the application of the rule, therefore, the following three essentials should be there:
1. Dangerous thing
Some dangerous thing must have been brought by a person on his land. According to this rule, the liability for the escape of a thing from one’s land arises provided the thing collected was a dangerous thing, i.e., a thing likely to do mischief if it escapes. In Rylands vs. Fletcher, the thing so collected was a large body of water. The rule has also been applied to gas, electricity, vibration, yew trees, sewage, flag-pole, explosives, noxious fumes, and rusty wire.
2. Escape
The thing thus brought or kept by a person on his land must escape. For the rule in Rylands vs. Fletcher to apply, it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. Thus, if there is a projection of the branches of a poisonous tree on the neighbour’s land, this amount to an escape, and if the cattle lawfully there on the neighbour’s land are poisoned by eating the leaves of the same, the defendant will be liable under the rule.
3. Non- Natural use of land
It must be non-natural use of land. Water collected in the reservoir in such a huge quantity in Rylands vs. Fletcher was held to be a non-natural use of land. Keeping water for ordinary domestic purposes is natural to use. For the use to be non-natural, it must be some special use bringing with it increased danger to others, and must not merely by the ordinary use of land or such a use as is proper for the general benefit of the community.
RULE OF ABSOLUTE LIABILITY
In M.C Mehta vs. Union of India, the Supreme Court was dealing with claims arising from the leakage of oleum gas on 4th and 5th December 1985 from one of the units of Shriram Foods and Fertilisers Industries, in the city of Delhi, belonging to Delhi Cloth Mills Ltd. Because of this leakage, it was alleged that one advocate practicing in the Tis Hazari Court had died and several others affected. The action was brought through a writ petition. The Court had in mind that within one year, this was the second case of large-scale leakage of deadly gas in India, as a year earlier due to leakage of MIC gas from the Union Carbide plant in Bhopal more than 3,000 persons had died and lacs of others were subjected to serious diseases of various kinds.
The Supreme Court took a bold decision holding that it was not bound to follow the 19th-century rule of English Law. It evolved the rule of ‘Absolute Liability. It expressly declared that the new rule was not subject to any of the exceptions under the rule in Rylands vs Fletcher.
After laying down the above-mentioned rule the Court directed that the organizations who had filed the petition may file actions in the appropriate Court within 2 months to claim compensation on behalf of the victims of the gas leak. Bhagwati, C.J. observed in this context- “ We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in the escape of toxic gad the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands vs. Fletcher.
The Court gave two reasons justifying the rule:
1. That the enterprise carrying on such hazardous and inherently dangerous activity for private profit has a social obligation to compensate those suffering therefrom, and it should absorb such loss as an item of overheads, and
2. The enterprise alone has the resources to discover and guard against such hazards and dangers.
III. JOINT LIABILITY:
This is where numerous tortfeasors are held liable for a tort against one party. The tortfeasors are said to be “jointly liable” for the harm caused. How much each tortfeasor will be required to pay may depend on their degree of liability, as well as the rules for that particular jurisdiction.
IV. PLAINTIFF/VICTIM LIABILITY:
If the victim contributed to their injury, they may share liability with the tortfeasor. This is often known as “contributory negligence,” and may result in the damages award being reduced or completely barred.
V. PARENT LIABILITY:
Parents may sometimes be held liable for the tortious actions of their children. This also varies according to jurisdiction and the type of tort involved.
REMEDIES
Tort liability can take on many diverse forms depending on the circumstances surrounding the disturbance. In general, tort liability is allied with monetary awards, but some forms of liability may drive to other remedies (such as a restraining order or an injunction). Further, there are mainly two broad types of remedies in Tort Law.
I. JUDICIAL REMEDIES
Judicial remedies are the remedies by way of action at law. The injured party may institute a suit in a Court of law and obtain redress. The remedies are obtainable for a tort utilizing an action at law mainly of three kinds
.
1. DAMAGES
Award of damages. Damages are the most important remedy which the plaintiff can avail of after the tort is committed. They are of various kinds:
i. Nominal damages.
Ordinarily, damages are equivalent to the harm suffered by the plaintiff. When there has been an infringement of the plaintiff's legal right but he has suffered no loss thereby (injuria sine damno) the law awards him nominal damages in recognition of his right. The sum awarded may be nominal, say, one or two rupees. In Constantine v. Imperial London Hotels Ltd.,1 the defendants wrongfully refused to accommodate the plaintiff, a famous West Indian cricketer, in one of their hotels, where the plaintiff wished to stay. The defendants provided him with lodging in another of their hotels. It was held that the plaintiff was entitled to nominal damages of five guineas.
ii. Contemptuous Damages
The amount awarded is very trifling because the court forms a very low opinion of the plaintiff's claim and thinks that the plaintiff although has suffered greater loss, does not deserve to be fully compensated. For instance, the reason for the defendant's battery against the plaintiff is found to be some offensive remark by the plaintiff. It is to be distinguished from nominal damages because nominal damages are awarded when the plaintiff has suffered no loss, whereas contemptuous damages are awarded when the plaintiff has suffered some loss but does not deserve to be fully compensated.
iii. Compensatory, aggravated, and exemplary damages
Generally, the damages are 'compensatory' because the idea of civil law is to compensate the injured party by allowing him, by way of damages, a sum equivalent to the loss caused to him. When insult or injury to the plaintiff's feeling has been caused, the court may take into account the motive for the wrong and award an increased number of damages. Such damages are known as 'aggravated' damages. The idea in awarding such damages is not to punish the wrongdoer. Such damages, therefore, are 'compensatory' in nature rather than punitive. When the damages awarded are more than the material loss suffered by the plaintiff to prevent similar behaviour in the future, the damages are known as 'exemplary, punitive, or vindictive. Such damages are not compensatory, they are rather by way of punishment to the defendant.
iv. Prospective damages
Prospective or future damages mean compensation for damage which is quite likely the result of the defendant's wrongful act but which has not resulted at the time of the decision of the case.
2. INJUNCTIONS
An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of damages is a sufficient relief, the injunction will not be granted. The injunctions are of various kinds. Temporary and perpetual injunction These have been defined in Sec. 37, Specific Relief Act, 1963 as follows:
(1) A temporary injunction is such as is to continue until a specified time, or until the further orders of the court.
(2) A perpetual injunction is one by which the defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which could be contrary to the right of the plaintiff. A temporary or interlocutory injunction is generally granted before the case has been heard on merits and it is only provisional and, as such, continues until the case is heard on its merits or until further. orders of the court. It does not mean determination in favour of the plaintiff but simply shows that there is a substantial question requiring consideration. Where it is, for example, intended that the property should continue to remain in its existing condition rather than being destroyed or wrongfully disposed of before the final decision, such an injunction will be issued. If the court, after fully going into the matter, finds that the plaintiff is entitled to the relief, the temporary injunction will be replaced by a perpetual injunction. If, however, the plaintiff's case is found to be unjust, the injunction will be dissolved. A perpetual injunction is a final order and is issued after the full consideration of the case.
Prohibitory and mandatory injunction Prohibitory injunction forbids the defendants from doing some act that will interfere with the plaintiff's lawful rights. Examples of it are restraining the defendant from committing or continuing the acts like trespass or nuisance. A mandatory injunction is an order which requires the defendant to do some positive act, for example, an order to pull down a wall that obstructs the plaintiff's right of light. 'You should not construct the wall' is a prohibitory injunction and 'You should demolish the wall' is a mandatory injunction.
3. SPECIFIC RESTITUTION OF PROPERTY
When the plaintiff has been wrongfully dispossessed of his movable or immovable property, the court may order that the specific property should be restored to the plaintiff. Recovery of land can be made by an action for ejectment and the recovery of chattels by an action for detinue.
II. EXTRA-JUDICIAL REMEDIES
Apart from the above-stated remedies of damages, injunction, and specific restitution of property which are also known as judicial remedies, a person may have recourse to certain remedies outside the court of law. Such remedies are known as extrajudicial remedies. A person can have these remedies by his strength by way of self-help. The remedies are re-entry of land, recaption of chattels, distress damage feasant, and abatement of the nuisance.
1. Re-entry of land and recaption of chattels,
In these first two cases, a person, by the use of reasonable force, has the right to recover back the property to which he is entitled.
2. Distress damage feasant
This entitles a person to seize the goods or cattle which have trespassed on his land until compensation for trespass has been paid.
3. Abatement of nuisance
An occupier of land is permitted to abate, i.e., to terminate by his act, nuisance which is affecting his land. For example, he may cut the branches or the roots of neighbour’s trees which have escaped to his land. Generally, before an abatement is made, notice to the other party is required unless the nuisance is one which, if allowed to continue, will be a danger to the life or property. When the abatement is possible without going on the wrongdoer's land, i.e., cutting off the branches of a tree hanging on the land of the abate, the same may be done without any notice. When there is more than one way of abatement, the less mischievous one should be followed. When a more mischievous way of abatement is followed, a notice of abatement should be given.
REFERENCES
Law of Torts, Dr. R.K. Bangia, Allahabad Law Agency, 22nd Edition
Winfield And Jolowicz On Tort, Edwin Peel And James Goudkamp, 19th Edition