"The Paramount task of the law of torts is to play an important regulatory role in the adjustment of losses and eventuate allocation of their cost and that until the emergence of the welfare state, the law of torts provided the only source for alternating the plight of the injured."
In the light of the above statement, discuss the nature and scope of law of torts and substantiate your answer with leading case law. Also discuss the position in India.
INTRODUCTION | The above-mentioned view regarding the nature of tort was laid down by John Fleming in his book, An Introduction to Law of Torts. The point is made in the light of the changing function of the law of tort.
In the earlier stages of evolution of the law of torts, the primary function of the law was to compensate a victim of tort to place him in a position prior to commission of tort.
John Fleming took the view that the Paramount task of the law of torts is to play an important regulatory role in the adjustment of losses and eventual allocation of their cost and that until the emergence of the welfare state, the law of torts provided the only source for alternating the plight of the injured.
HISTORICAL PERSPECTIVE OF TORT : Before the development of tort law, the only option available to victim of tort was self-help i.e., he has to take some action on its own to alleviate the damage caused to him in consequence of tort. However, as the time passed, tort law was developed wherein victim should offer to the person wronged, the quantum of which depended on the extent of the wrong caused and the status of the sufferer.
NATURE OF TORT | The Modern law of Tort has gone through many changes and only through these the law has developed to the one known today. The modern law of torts has certain distinct characteristics as follows:
(i) Tort is a civil wrong. Due to its being a civil wrong it differs from a crime. In case any crime is committed, criminal proceedings are initiated before the Courts and appropriate punishments are imposed whereas in case of civil action, main remedy is damages and compensation. |
(ii) Tort is different from a breach of contract of trust. This means that an action for damages under law of torts will not lie merely because there has been a breach of contract or trust. For example, where a person agrees to purchase a house and thereafter does not fulfill his obligation, the resultant wrong would be a breach of contract and not a tort. |
(iii) In case of tort, the remedy is in the form of unliquidated damages. This means that damages are not predetermined. Only when a wrong has been committed that the Court can decide the amount that has to be paid as compensation. It is therefore said that the Paramount task of the law of torts is to play an important regulatory role in the adjustment of losses and eventuate allocation of their cost. In order to decide compensation, the court takes into account the nature of injuries caused, conduct of the defendant, and other facts and circumstances of the case. |
Therefore, from the above explanation it can be concluded that law of torts has following characteristics:
(i) It is a civil wrong;
(ii) It differs from breach of contract or trust;
(iii) It is redressible by a civil action for damages and such damages are unliquidated in nature;
(iv) In an action for tort, it is not necessary that plaintiff must suffer some monetary loss due to the act of the defendant. If the plaintiff proves violation of his legal rights, he can claim damages. This is laid down in the maxim of injuria sine damnum, which means legal injury without any damage.
CONCLUSION | From the above discussion, it becomes clear that the law of torts has developed in order to reduce the losses suffered by a party by virtue of wrong committed against him. The losses are reduced by payment of compensation by the wrongdoer. In recent times, the concept of welfare state has emerged which views welfare of the people as the ultimate goal. However, before the emergence of the welfare state law of torts settled the disputes of the people through payment of compensation to the victims.
