Historical Perspective of Tort Admin Legal Article Wed, Nov 24, 2021, at ,08:49 PM Historical Perspective of TortEver since the dawn of human civilisation maintenance of peace in society has been a baffling problem. As Emile Durkheim rightly stated that even a society which is composed of persons with angelic qualities would not be free from violations of the norms of that society because different groups have variable and often incompatible interest in the society which give rise to conflicts eventually resulting in wrongful acts, be it a crime or a civil wrong' Historically, the concept of crime and tort and distinction between the two emerged much later after the institution of Kingship or the State came into existence. The primitive societies did not recognise any distinction between law. Of crime and torts and termed both of them as "law of wrongs' Commenting on the point Federick Pollock and Maitland observed that the English society prior to tenth century confused crimes with torts because the bond of family was far more stronger than that of the community I, the injured party and his kindred could avenge the wrong by: private vengeance and self-redress. During this period recourse to legal remedy was considered merely an optional alternative to self-redress. The wrongdoer was supposed to offer compensation to the person wronged, the quantum of which depended on the extent or the wrong caused and the status of the sufferer. The payment of compensation known as bot washed away guilt of the wrongdoer and relegated him to a position as if he had done no wrong. The early Anglo-Saxon laws contained minutest details of bot' (compensation) which was payable for different wrongs with a view to helping the person wronged in seeking redress.However, if bot was refused, the law had no other means to enforce its payment. In that event, it was for the victim or his kindred to prosecute a blood-feud against the wrongdoer and law could help him only by declaring the wrongdoer as an 'outlaw' who could be chased and killed by anyone like a wild beast.Besides the wrongs which could be atoned by bot (payment of compensation} there were certain other wrongful acts which entailed additional fines known as toe payable to the King. That apart, there- were certain "bootless' wrongs for which no amount of compensation could wipe out the guilt and the wrongdoer had to undergo punishment.Such cases were punishable with death, mutilation or forfeiture of property to the King. Housing-breaking, harbouring the outlaws, refusing to serve in the army, causing breach of peace etc. were some of the "bootless' wrongs which entailed compulsory punishment under the law of the State. With the march of time, the number of the 'bootless' wrongs increased considerably by the end of 12th century and a distinct line of demarcation could be drawn between the wrongs which could be redressable by payment of compensation and those which were not redressable by payment of compensation and for which the wrong doer was punished by the king. In course of time the former came to be known as civil wrongs or 'torts' while the latter were called 'crime'. Thus, in early societies the law was administered only If both the parties agreed to submit themselves to the verdict.Thus, it would be seen that the concept of civil law as distinct from criminal law became more conspicuous with the growth of State which ensures justice to its people through the instrumentality of law. As the law grew and developed, the concept of justice also expanded its tentacles to different spheres of human activities and today we have civil justice. criminal. justice, economic, social and political justice and so on.Briefly speaking, the modern law of torts or civil wrongs has evolved through four main stages. In the early stage when society was primitive private vengeance and self-help were. the only remedies available to the wronged person against the wrongdoer. He could get his wrong redressed with the help of his friends or relatives. The second stage of development of civil law was characterised by the. State coming into existence in its rudimentary form when its functions were only persuasive in nature. It did not have enforcing power by which it could penalise the, wrongdoer. In the third stage of development of civil law, wrongs could be redressed by payment of compensation by the wrongdoer to the victim who was affected by the wrongful act. Thus, upto this time civil justice remained more or less private in nature without compulsive force of the State.The modern law which represents the fourth stage, recognises the State as the sole authority to implement and enforce civil as well the criminal law for the administer of justice: Blackstone, preferred to call civil wrongs as private wrongs as against the crime which he termed as public wrongs. The former are violations of civil or legal rights of individuals called civil injures, while the latter are in the nature of violation of public rights and duties which affect community as a whole and are called misdemeanours. Thus, civil wrong is an infringement of the legal right of individual which does not affect society in general and is redressable by monetary compensation. The main. object of, civil. justice is to enforce rights and remedy the wrong caused to the aggrieved party through a civil suit against the wrongdoer who is known as "defendant:Roman Law of ‘delict'The existence of the rudiments of modern tort-law may Be found in the ancient Roman law of delicts which meant a private wrong for which the proper remedy was reparation or award of damages. It, however, differed from the modern law of torts in two aspects.Firstly, it also included offences such as theft and robbery which under the Roman Law were exclusively delicts. Secondly, its scope was confined only to a limited number of specified Wrongs such as theft, robbery, damage to man's property injury to man's person and reputation. The Roman Code known as the Twelve Tables justified private vengeance against the wrongdoer in default of päyment of customary amount of compensauon, but the system was later disapproved by the Diocletian Reforms of 294 A.D: and decision of the case by a Judge alone became the distinctive feature of theRoman Law of delict. Subsequently, the entire law of delicts was codified by Justinian in sixth century, i.e., 529 B.C. and the whole law once again revived in 12th century and it was adopted by many European countries such as France, Germany, Holland, Scotland etc. The Napoleon Code of 1804 was basically modelled on the Roman Law of delicts.Law of Private Wrongs in Ancient IndiaThe perception of law in ancient India being different from. what it is today, it laid greater emphasis on duties rather than rights of persons. The main sources of ancient Hindu Law, i.e, Smritis the Code of Manu & Yajnavalkya with its commentaries compiled by Narada, Vasa, Brihaspati and Katyayana furnish a detailed account of law of private wrongs and damages prevalent in ancient India. The ancient Hindu Law recognised the institution of King or State which had complete control over its subjects. The. Entire scheme of civil and criminal law has been described by Manu under eighteen heads3. such as gifts, sales, partners, assault, defamation, theft, robbery etc. The right to recover compensation was recognised in three cases, namely, (1) damage caused to crops by trespass of cattle (2) - bodily injuries, and (3) damage caused to goods whether intentionally or otherwise". There was no scope for private vengeance or retaliation in the ancient scheme of justice. However, non-payment of debt or breach of contract which give rise to civil cause of action, were regarded as crime punishable by the King or his delegate? The Digest prepared by Viramitrodaya and Vyavahara Mayukha contain authoritative details on a variety of topics relating to law of private wrongs (now known as torts) including injuries to person and property, trespass, fraud, deceit, bailment, negligence. law of carriers, measure of damages, defences etc. which form the subject matter of modern law of tort.The ancient Hindu Law of torts, however differed from the present law of tort in one distinct aspect. It recognised right to compensation. only in cases where plaintiff suffered monetary loss and not in -other cases like assault, false imprisonment, insult, adultery, defamation etc., which were regarded as punishable offences and did not give rise to cause of action in torts. It must, however, be stated that the modem law of torts in India is based on the English Law of torts with necessary modifications to suit the Indian conditions. In fact, Sir Federick Pollock had prepared a draft tort law for. India but the British Government thought it expedient not to give it statutory recognition and, therefore, it was not implemented. However, with the establishment of English Courts in India, English Laws were introduced with necessary modifications to suit the Indian conditions applying the principle of equity, justice and good conscience and law of tort was no exception to this process of change.t Torts being an uncodified branch of law; is mostly based on judicial decisions and in fact it is still' in the process of development. Tort actions in India are far and few as compared with other advanced countries, the reason being that people in India are, by and large, reluctant to indulge in Court litigation due to high cost and inordinate delay in dispensation of civil justice. They prefer to suffer the loss caused by the wrongful acts of the defendant rather than moving the Court of law which is an expensive and dilatory process.According to Privy Council's decision in Invercargll City Council-v. Hamlin, S the countries which were under the British Colonel rule should not consider introduction of common law in their territories as their Weakness but it was rather a step forward: towards rationalising their indigenous laws by removing their obscurities through the application of the principle of justice, equity and good conscience which has a significant role in the administration of justice.The Chief Justice of Supreme Court of India Mr. P.. Bhagwati (as he then was) also appreciated the need for modifications in the judicial norms. so that the problems emanating from developing economy and Industrial advancement could be effectively tackled.'The Supreme Court in an earlier decision? observed that where the circumstances so warrant, the Courts should not hesitate in expanding the 'horizon of tortious liability by innovating new principles which have hitherto remained unincorporated in the' English Law of torts. Thus a more pragmatic and progressive approach to the present law of torts in India is the need of the time. In this context, Juslice Sahay of the Apex Court. (as he then was) in Lailaxmi Salt Works (P) Ltd. v. State of Gujarat, 3 observed that most part of the tort law in Indla is based on ethical principles of morality; therefore, any attempt to restrict the expanding dimensions of tortious liability would be a retrograde step towards the development of this branch of civil law. A liberal approach to liability in tort cases is all the more necessary keeping in view the social development and progress as also the cultural refineness of the Indian society.Origin of Law of Torts in EnglandThe Anglo Saxon laws during the Middle Ages even upto the beginning of the 12th century was in a very rudimentary state and pecuniary compensation to the person wronged or his kindred or private vengeance was the normal feature of that archaic system of justice. However, with the Roman occupation of England for nearly 300 years (during second and fifth centuries) Justinian Code was promulgated around sixth century. It was after the Normal, Conquest, particularly during the reign of Henry II that English Law Courts were established which could punish all forms of violence as crime against the King's peace instead of allowing them to compounded as private wrongs.Initially, certain crimes such as theft, trespass etc. were treated both as civil wrong and a crime leading to award of damages and punishment. This legal position continued until the end of seventeenth century when criminal 'Indictment' became separated from the civil action.The Forms of ActionPrior to the passing of the Judicature Act, 1872 the common law procedure for civil wrongs was in the form of actions for torts. The forms of action, as they were popularly called were available chiefly in two forms, namely (1) action of trespass and (2) action on the case. For ascertaining whether in a given case plaintiff has a cause of action, a very simple procedure was adopted which has been described as the system of writs.The Writ SystemDuring the early years of 14th century a simple procedure for administration of justice was adopted by the British King. Though there was no compartalisation of wrongs like crime, tort, breach of contract etc., the administration of criminal justice was solely vested with the King's Court and action for trespass and other wrongs of civil nature were to be adjudicated by the Common Law Courts which were otherwise termed as the Court of Common Pleas.In the earlier stages common law was primarily concerned with remedies and not with rights and duties. Under the system of wits, the plaintiff had to comply with a formality of obtaining a writ from the chancellor of the Exchequers for instituting a suit against the defendant in a Common Law Court, If the wrong called for a remedy the Chancellor would Issue a writ entitling the plaintiff to file a suit against the defendant in, the Common Law Court. However, if the wrong complained of was not recognised as wrongful act in tort, the Chancellor would refuse to issue the writ and, in that case, Plaintiff had no remedy though he might have a cause of action against the defendant. This in other words meant that plaintiff could not move the Court without a writ having been issued by the Chancellor for that purpose. Thus, where there was a writ, there was a remedy or negatively speaking, there was no remedy without a writ. This represents the first stage of evolution of law of torts in England under the system writs and has been expressed by the Latin maxim Ubi remedium ibi jus, its literal meaning being where there was a writ there was remedy'. It must, however, be stated in the initial stage the authority of the Chancellor to issue writ was confined only to a very limited number of wrongs, notably. injuries caused to person or property of the plaintiff where writ called 'action of trespass' was generally issued.In course of time other types of wrongs such as negligence, nuisance or disturbance in another's possession of chattel etc. also called for a remedy. But these cases were not covered under action of trespass, hence a writ could not be issued by the chancellor as a result of which plaintiff's case remained unredressed. It was, therefore realised that the system of writs suffered from certain grave defects and in most cases plaintiff whose right was violated had no remedy against the defendant for want of, availability of an appropriate writ. That apart, the formality of obtaining writ before filing a suit against the defendant caused great injustice to aggrieved persons because writ could be available against action of trespass and not for other cases. In short, the writ system adopted at the evolutionary stage of development of torts mainly suffered from three defects, i.e. (i) absence of remedy (2) inadequacy of remedy, and (3) excessive formalism. The existing writ system was, therefore, modified in order to remove its deficiencies.Modification in Writ SystemAs stated above, where there was no remedy available by way of a writ, there was no right for the plaintiff to move the Court. The existence of a right was recognised only if, a writ was available. Moreover, the plaintiff had to be very careful in choosing the right kind of writ for the wrong caused to him. If he chose a wrong writ, his cause of action would fail. Thus, there was greater emphasis on procedural aspect of the writ rather than the violation of plaintiff's right. This situation continued for over four centuries though some amendments were made in the Common Law Procedure in 1832 and 1833.A serious. attempt was made. to remove the discrepancies of the existing writ procedure by the Common Law Procedure Act, 1852 whereby the system of writs was modified so as to give primacy to rights of the plaintiff rather than the formality of writ. This does not however, mean that the writ system was abolished. Instead, its procedure was changed.Now it was not necessary for the, plaintiff to mention any particular form of action (writ) under which; his cause of action was covered.' He was only to prey for a writ on 'action on the case and it was left to the discretion of the Chancellor to grant the writ or refuse it. For example, an action for trespass lay for direct injury such as injury caused to the plaintiff due to negligent driving of his carriage. But where one. throws a log into a highway, and if at the time of its being thrown, it hits a person; it is a clear case of trespass, but if after it be thrown, any person going along the road receives an injury by falling over it, then it is an "action on the case, and a writ could be issued to the plaintiff entitling him to sue the defendant in the Court. of law. Thus, under the modified form of writ system a writ for trespass could be Issued even in case of indirect action. Likewise, fall of a tree from highway to adjacent property, though not a direct trespass was treated as indirect trespass and an action on the case lay for such indirect injury. Thus, it would be seen that by liberalising the issue of writs by allowing the Chancellor to use his discretion in cases similar to those for which a writ could be available. the defect of "absence of remedy' was removed to a great extent; This change in the common law procedure finds expression.in the Latin maxim ubi jus ibi remedium, which means where there is a right, there is remedy (writ). However, consequent to the passing of the Judicature Act, 1873, the writ system was completely abolished and the plaintiff could file. his plaint directly in the Court without the requirement of a writ or a prior permission from the Chancellor. The modified system was based on the principle that where a plaintiff has right, he must have a means to vindicate and maintain it, and a remedy should be available to him. in case he is injured due to violation of his right by the defendant. In other words where there is right it cannot be without a remedy.Conversely, where there is no right there is no, remedy. The creation of new torts from time to time evinces that whenever there has been an unjustified interference in the right of a person, the Courts have come forward to provide remedy for the same. In course of time, the forms of action were abolished. and various actions on the case paved way for development of torts which now' exist with their specific names such as defamation, nuisance, deceit, negligence, assault, false imprisonment, malicious, prosecution etc. In the context of origin of law of torts in England, it may be stated that in the 18th century Blackstone, the author of commentaries on laws of England discussed wrongs under different heads in terms of appropriate remedies available for them and not under the modem captions like law of torts or law of contracts! etc. The recognition of torts as à division of law in England may be traced back to the year 1860 when the first treatise on this subject was published by Addison. The late Sir Federick Pollock published his treatise on English law of torts in 1886: In fact, with two-fold division of old forms of action two distinct actions came into existence and they were known as actions in torts and actions in contract, which later developed into two separate and independent branches of law. The principles of absolute liability, vicarious liability occupier's liability and manufacturer's liability etc. subsequently found place in law of torts. The shifting trends in the application of doctrine of contributory negligence, expanding dimensions of state liability, abolition of the doctrine of common employment and innovation of new torts like nervous shock, gherao etc. are Indicative of the fact that efforts are being constantly made to restructure and modify the tort law to suit the exigencies of time and place. While most branches of law e.g. contracts, property, trusts, crime, have been codified, the law of torts yet remains uncodified. The reason being that this branch of law. is still in the process of growth and any attempt to codify it would retard its. Proper development. Dr. Winfield was of the view that there was greater scope for the development of law of torts if it remained uncodified. However, certain specific area of torts. such as contributory negligence, indemnity among Joint tort-feasors etc. have. directly been codified on the recommendation made by the law reforms committees appointed by Lord Chancellor from time to time.