Character, advantage and disadvantage in Law of Torts

The term tort is the French equivalent of the English word wrong and of the Roman Law term delict. It is derived from the Latin term tortum to twist, and implies conduct which is twisted or tortious. There is no universally accepted definition of tort, but it is generally considered to be a civil wrong which is not a breach of some duty arising out of contract, for which compensation can be recovered.

Also Read Discharge of Torts in India

Also Read Damages for Nervous or mental shock

The principal aim of law of torts is the compensation of victims or their dependents. Thus, the main remedy in this branch of law is compensation paid for the losses suffered.

Also, tort law is judge made law. It is uncodified and is based on rulings given by judges in judicial precedents. The facts of a given case, based on tort law, are examined and the judgments of previous similar cases are referred to come upon a decision. This kind of judicial decision making exists mainly in common law countries such as India and the United Kingdom.

Also Read Rule of Novus Actus Interveniens

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Since the law of torts is uncodified in nature, this is advantageous in the sense that new additions are made to it with various new case laws, and it is constantly evolving. Through the evolution of Tort Law according to modern standards of society, it is also seen that these changes are sometimes incorporated into codified laws such as statutes.

An example of this in the Indian context would be the various social welfare schemes where the principle of strict liability has been incorporated to provide insurance in case of death or injuries, regardless of any fault on anyone’s part.

Section 3 of the Workmen’s Compensation Act of 1923 provides compensation for injuries resulting from and in the course of employment, and this recompense is not for negligence on the part of the employer, but rather serves as a form of insurance for workers against certain risks of accidents.

Also Read Determining the amount of compensation/damages for personal injuries

Section 3 of the Public Liability Insurance Act, 1991, extends this provision of compensation to any person who suffers death or injury, or damage to property, to be provided by the owner. It further states that the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made due to any wrongful act, neglect or default of any person.

However, the uncodified character of the law of torts can also act as a disadvantage. This feature means that the law in this field can be vague and ambiguous, and in case of contradicting precedents, it can be difficult to ascertain the relevant law. Absence of a concrete legislative source of law also creates further confusion. This also gives excess power to the judiciary, whose role is to interpret the law, and not create it. Thus, there is blurring of the lines of separation of power, and the judicial branch takes on legislative functions, which might adversely affect the balance of power, as it exists in a democratic government.

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