INTRODUCTION
Tort is a civil wrong. It deals with civil damages. There are some general rights which have been provided to people throughout the world. To recognize such rights, the judiciary had adopted certain liabilities which help in providing compensation to the party who has suffered damage. But the thing which is important to remember is that there is no codified law for tort or tortious liability. To deals with cases of tortious liability, we are dependent upon previous judgment and jurisprudence.
PRINCIPLES OF TORTIOUS LIABILITY
It is true that most of the principle of tort has emerged in England but the Indian Courts have done required changes to meet the local requirement. Some of the important tortious liabilities are as follow:-
1. Damnum Sine Injuriya
It is a Latin maxim which means damages without injury. In such cases, there is an actual loss without infringement of any legal right. Since there in no any infringement of legal right but of money only, it does not amount to tortious liability.
2. Injuriya Sine Damnum
It is also a Latin maxim which means injury without damage. Since there is an infringement of legal rights without any loss, tortious liability may arise for the infringement of the legal rights.
3. Principle of Vicarious Liability
The general principle of liability states that tortious liability to the party who commits damage to others but in case of vicarious liability, liability may arise upon the third party also.
E.g. A master may be liable for the act or omission of his/her servant.
4. Volenti Non-Fit Injuriya
Sometimes a person who has suffered damage compensation may not be entitled to claim damage because he has given his consent in the form of knowledge of the possibility of damage.
Apart from this common principle of tortious liability, there are few other liabilities that are also like strict liability or absolute liability. However, the main thing which needs to understand is that the general principle. The general principle of tortious liability states that if any person suffered any damage due to the act or omission of another party then he will be entitled to compensation.
However, there are different views on the general principle of liability by different scholars. In this article, we will focus on Salmon and Winfield’s theory based on general principle liability.
GENERAL PRINCIPLE OF LIABILITY
The general principle of liability talks that if any damage had been caused to any person by any other person, the suffered person should be compensated for the damage caused to him. The essentials of tort are Act or omission along with legal injury. Along with it, it also includes negligence and intentional tort like battery, assault etc.
But there is a very genuine question that whether the tort should be called a law of Tort or law of Torts. The basic difference between these two is that the Law of Tort says that if any damage happens to any person then he should be compensated irrespective of the debate that whether the act or omission causing such damage falls within a specific rule or not. But Law of Torts says that the person suffering damage will be compensated only if the act or omission of the person causing such damage falls within specific rules.
SALMOMD’S THEORY
Salmond was a supporter of ‘Law of Torts’ which says that a person would be eligible for compensation only if the damaged causing act or omission falling within specific rules made to give compensation. He was against any general principle of liability.
To support his views, Salmond has proposed Pigeon hole theory. Using this theory, Salmond supported the argument of the Law of Torts. As per this theory, Salmond conveyed that a person would be liable to pay any compensation for any act or omission causing damage to another person on if his act or omission falls within any nominate tort. Hence, in Salmond’s pigeon hole theory, there is no general principle of liability.
WINFIELD’S THEORY
On the other hand, Winfield was a supporter of ‘Law of Tort’. He stated that the general meaning of Tort is wrong. He said that a person will be liable for compensation if his act or omission causes damage to others. He said that there is no need for any justification. If any damage had been suffered due to the act or omission of another person, then the person suffering damage must be compensated. Thus according to this theory, tort includes all specific wrongs and also those which cause unjustified harm to any person until and unless there is any justification in law.
The theory of Winfield was based on the assumption tort is a continuously growing branch of law and the number of acts or omissions leading to any wrong cannot specify in totality. The area of tortious wrong expands with this growing society and it cannot be restricted to a particular number of wrong due to the changing nature of wrong in an ever-expanding society. Basically, this theory purports that a new wrong can be created by a court if it thinks fit.
The New Mexico Supreme Court in Schmitz V. Smentowski[1], has said that the prima facie tort is to provide a remedy when alleged conduct does not come within the intendment of one of the established classes of torts. The implication of Winfield’s can be seen in different cases where new torts had been developed. In Winsmore v. Greenbank[2], the tort of inducement of a wife to leave her husband was developed.
The Judiciary in India has also approached Winfield’s theory where they stated that we need to develop new principles and rules which will deal with new challenges. The court in the case of M.C. Mehta v. UOI, has stated that we have to evolve new principles and lays down new norms which will adequately deal with new problems which arise in a highly industrialized economy.
[1] 785 P.2d 726 (1990)
[2] 1745 willes 577 (581)
This Article is Authored by ASHISH RANJAN, 2nd Year B.A.LL.B.(Hons.) Student at the Central University of South Bihar, Gaya.
Also Read – What is The Principle and Essential Ingredients of Vicarious Liability?
