SEMESTER I (Academic year 2022-23)

LAW OF TORTS

TOPIC-LAW OF TORTS AND MORALITY

SUBMITTED TO:

Prof. Deepika Chhangani

NMIMS Kirit P Mehta School of Law

SUBMITTED BY:

Ishaan Shetty

BBA LLB (Hons.) Div F

Roll No. 024

 Law Of Torts And Morality
ABSTRACT
Could it be that the picture of human agency that the law presupposes to be true is incorrect? If this is the case,
what does that imply about the way in which we use the law to justify everything from civil damages to
criminal punishments? There is nothing more to people than the biological machines they are. Every action that
a person takes is the direct result of some physical cause. There is no such thing as free will. Regarding the
issue of responsibility, It is abundantly clear that human agents do not bear any moral responsibility.

INTRODUCTION
A tort is any instance of hurtful behaviour, such as a physical assault on one's person or interference with one's
property or with the use and enjoyment of one's land, economic interests (under certain circumstances), honour,
reputation, and privacy. Torts are recognised in common law, civil law, and the great majority of legal systems
that originate from them. In common law, a tort is any instance of harmful behaviour. In civil law, a tort is any
instance of harmful behaviour. The phrase "anything twisted, wrung, or crooked" comes from the Latin word
"tortum," which means "something." Only civil wrongs that are not based on contractual obligations are
included in this idea.
The majority of western European and common-law legal systems have a tendency to view as actionable the
same factual conditions. This is a statement that is mostly accurate. However, despite the fact that the
challenges that are faced are the same and the solutions that are found are frequently quite comparable, the
organisation of the law and the methodology that is utilised frequently vary significantly between countries.
This is because the arrangement of the law is dependent on how the law was conceived in the first place and
how various cultures have approached finding solutions over the course of history. Therefore, the German Civil
Code displays a strong propensity toward abstraction and systematisation. These characteristics hint at the
code's university and Roman-law roots and contrast, to least on the surface, with the more casuistic (case-based)
and judge-made legislation of the common-law systems. In contrast, the codifications of the 19th century,
which are the products of the natural school of law (see natural law), are characterised by their expansive scope
and manifesto-like provisions. This often makes them more readable than their German counterparts, but it also
makes them less precise, requiring judicial definition as a result. The Napoleonic Code, which was enacted in
1804, is illustrative of this method. It served as a model for the majority of Romanistic legal systems, such as
those in Italy and Spain as well as their offshoots, which are mostly found in Central and South America. The
interaction of judicial practise and doctrinal writing in these nations has produced a significant portion of the
modern legal system in those countries.
After Worl War II, tort law extended to many regions of the world, and its effect was particularly noticeable in
continental Europe. This is despite the fact that tort law is often seen as being subordinate to contract law in the
law of civil duties. At the same time, criticisms levelled against it have led to its replacement, either in part by
specialised schemes or, in very unusual instances, by comprehensive systems of accident compensation. The
criticism has also sparked an in-depth debate regarding the implications of current insurance practises, the
welfare state, and the significance of incorporating economic research into the process of correctly developing
laws. It seemed for a while that these difficulties would even bring about sweeping change (like the one that
was implemented in New Zealand in the 1970s), which would put in jeopardy regulations that have a lineage
that goes back many, many decades. However, the tort system continued to exist virtually unchanged as the
20th century came to a close, despite being accorded a lower status within the overall system of compensation.
This was due to the fact that the majority of compensation for injuries that could be repaired continued to be
paid through social security systems and insurance claims.

CONCEPTS INVOLVED IN TORT AND MORALITY

What is Morality?
Morals are the generally accepted patterns of conduct that allow for communal living. What is moral is what is
generally accepted by most people.
People generally behave decently and conform to accepted norms. For reasons of morality, individuals must
often forego immediate gratification in favour of the greater good. An amoral person or organisation is one that
does not care whether or not its actions are good or bad; an immoral one is one that does evil.
Some moral ideals, like fairness, may seem to be universal, yet morality is not static. Morality is a term used to
define the values held by a certain community at a given moment. Traditions of faith have historically provided
a foundation for morality, but today's secular society places equal value on moral principles. Codes of ethics are
guidelines established by organisations for the conduct of its personnel.
There are some philosophical thinkers that separate morality from ethics. However, many individuals see no
distinction between morality and ethics when discussing their own values. A frequent expression is "My values
prohibit me from cheating." The word "ethics" is often substituted here as well.Ethical theory is the
philosophical study of right and wrong, and morality is a subset of ethics. Right and evil are central to morality,
and moral standards may be derived from any number of sources, including but not limited to philosophy,
religion, history, and cultural traditions.
Moral perspectives change throughout time and from place to place as a result of the many factors that affect
them. Some cultures are strongly influenced by their past and maintain their uniqueness via long-standing
customs and beliefs, such as a consensus on what is good and wrong. For instance, a culture's moral norms
about women's duties may be well-established and distinctive, while diverging from the common understanding
of these roles in other societies.To sum up, morals are the societal norms by which individuals should live. And
although morals may evolve over time, they always serve as the yardstick by which we evaluate actions.

Types of Moral Principles

Both absolute and relative moral standards exist.
1.Absolute principles are consistent and applicable everywhere.
The application of moral principles varies with context.
The absolute moral rules we live by are grounded on facts about humanity that are universally true. As an
example, murder is unethical because it disrupts the balance of nature. The term "normative moral standards"
may be used to refer to them as well. Some instances of universally accepted moral standards are shown below.
1. Avoid killing.
2. Tell it like it is.
3. What you say and do might have a significant impact on the lives of others around you.
4. Don't trespass on other people's land.
5. One should help others in need or suffering the way they would want to be helped.
Relative Morality
Moral principles might be considered relative if they are founded on beliefs and circumstances that are subject
to change over time, from person to person, and from situation to scenario. Moral absolutes are subjective and
rely on one's worldview. Considering good and terrible in terms of how they affect the individual's own
circumstances (relativism). What this means is that when someone thinks something is excellent, they are
usually referring to the fact that it is beneficial to them personally. Some instances of similar moral standards
are provided below.
1. Spending money on a luxury item is immoral.
2. Conserving Earth's natural resources for the benefit of future generations is a moral imperative.
In order to understand how to get along with others and live peacefully in a community, moral concepts are
essential. They instil in us the knowledge that it is wrong to treat others differently because of their race or
ethnicity. The quality of life is higher for morally principled people than for those who don't follow them.A
person's sense of self and identity may also be shaped by their commitment to moral ideals. Someone who
always tells the truth, for instance, may consider themselves a morally upstanding human being since they have
made this commitment to themselves. Those who have strong egalitarian principles may also find that they have
a more positive self-image when they refrain from prejudice.

Moral Responsibility in Terms of Negligence

It's not always clear who's to blame when something goes wrong. A common presumption in both everyday life
and the law is that individuals should shoulder the burden of responsibility for their careless actions. Justifying
this assumption, however, has been difficult. Intentional action is held up as the gold standard against which all
other behaviours are measured, and we typically associate responsibility with such behaviours. The
unintentional nature of negligence complicates attempts to explain legal liability. Negligent behaviour is never
deliberate and is either not self-guided or is carried out without the actor's knowledge or awareness that they are
acting negligently. The degree to which one's agency controls or is even involved in one's conduct is thus not
always readily apparent when one is acting negligently. Many people question the justification for legal
responsibility for negligence and even the very concept of (moral) responsibility for negligence because
negligent behaviour can appear to occur regardless and at times even despite one's agency.
A person's moral accountability hinges on a link between their actions and their ability to influence the
outcomes of those actions. 1 There are many components that make up actual agency. For example, H.L.A.
Hart frames the issue in terms of people's "responsibility capacities." 2 Practical agents have a range of
cognitive, rational, and epistemic abilities, including the ability to learn, recognise, and recall norms, reasons,
and facts; and the ability to reason, feel, deliberate, and make judgments about these things. Choice, decision-
making, and bodily control are all examples of the practical capacities possessed by agents. One who possesses
this set of skills is a subject who can rise above compulsion, instinct, and passion to act (or refrain from acting)
in accordance with rational considerations. That is, an agent who acts in accordance with her own free will and
sound judgement. As a result, being able to take responsibility for one's actions depends on one's capacity to
exercise practical agency.
Responsibility for negligent behaviour is more challenging to account for, and the comparison to the case of
responsibility for intentional behaviour highlights this. The traditional understanding of personal responsibility
for one's actions dates all the way back to Aristotle and centres on the presence of knowledge, the presence of
will, awareness, and the ability to exercise control over one's actions. 3 Somebody called this view of
responsibility "volitionism," but the basic idea is that A is responsible for phi-ing only if A phi-ed knowingly
and willingly. 4 Intentional action (or omission) serves as a model for this understanding of responsibility
because the link between behaviour and agency is so transparent in such cases.
One's capacities for responsibility become readily apparent when acting deliberately occupied with doing what
one is supposed to do. Actions that are deliberate and thought out are called "intentional," and they are
performed by the agent with full awareness of the consequences of their actions. Therefore, there appears to be
no mystery, at least on a pre-theoretical level, as to why we attribute agency to intentional actions and, by
extension, why we associate individuals with the consequences of their choices. The same appears to hold true,
with some variations, for deliberate omissions. Comparatively, it's not as simple to explain how agency relates
to negligent behaviour and establish fault.

Whether or whether the law of torts has a morality:

The concept of "tort law" originated simply from the morality of the community and retains certain moral
principles as its foundation. To put it in its most fundamental terms, the origin of tort law is to protect society
from anarchy and mayhem by establishing a court in which one individual can bring a claim against another,
without resorting to private revenge. [1]Just as the morals of society construe that no person should do anything
wrong with anyone and that if he has done anything wrong, then he must be punished, just to get the victim
back to a decent position.
For instance. It would be immoral if the person who suffered were left as such without being provided with any
relief because the strict liability principle does not express morality at large but instead has a specific structure
that a moral account of it must track. Tort law does not express morality at large but does have a specific
structure that a moral account of it must track.

It is not accurate to say that tort law is fully founded on moral principles, despite the fact that it does have
certain moral foundations. When discussing the law of torts in the modern day, it is important to highlight that
the improper act or wrongful omission in question needs to be one that is recognised by the law. It is impossible
for there to be legal responsibility for anything that is merely a moral or social wrong.
For instance, if someone does not help a person who is starving or save a child who is drowning, it is only a
moral wrong and, as a result, no liability can arise for that unless it can be proven that there was a legal duty to
help the person who was starving or save the child who was drowning. If this can be proven, then liability can
arise. One further pertinent scenario in which a simple breach of moral responsibility is not enough to hold a
person accountable is that of a woman who becomes unwell and asks her neighbour B to look after her because
she is by herself.
During her time of need, B makes 'A' as comfortable as possible by being there for her and providing her with
assistance of various kinds, such as providing her with food and medicines and ensuring that she is taken care
of. A recovered after sometime. After B became ill, he made a request to A to assist him during his illness.
However, A did not comply with B's request, and as a result, B became crippled as a result of a lack of
appropriate care and assistance. In this situation, it was A's ethical obligation to watch after B; nevertheless, if
he does not take care of the lady, he cannot be held responsible for his actions.

Different Classes of Tort Claims

On the basis of the wrongdoing that occurred, torts can be roughly classified into one of three
categories. These categories are as follows:
1.Intentional Torts An intentional tort is a tort that is created by another person or group of people (i.e. the
defendant) intentionally committing an act of wrongdoing that causes harm to a third party. Acts such as
assault, battery, trespass, false imprisonment, defamation, and libel are examples of these types of crimes.
2. Negligent Torts: A wrongdoing that was brought on by the carelessness of another individual or group of
individuals is referred to as a negligent tort. These include situations that typically take place as a result of a
person's failure to behave with the level of care that an average person with common sense would have done in
the same situation. It is vital to prove that there was no additional duty of care required, and that a person who
failed to exercise the appropriate amount of care that one with ordinary prudence would have had is negligent in
this situation. Some examples of torts include causing injury to a person's body or property via carelessness. For
example, if a person disobeys the laws of the road in a careless manner and then causes an accident as a result,
that person is responsible for the accident under the law of negligent torts.
3. Torts that Fall Under Strict Liability: When a person commits a tort that falls under this category, they are
regarded to be accountable for it regardless of whether or not they had the intention to perform the wrongdoing.
Because of the stringent nature of these torts, the courts have determined that it is unnecessary to establish the
defendant's intent in certain cases. Typically, actions that constitute torts include the creation of defective goods
and medications that endanger the consumer's life or cause them to suffer a severe injury. In situations like
these, not only the maker is held liable for the faulty goods, but everyone engaged in the supply chain of the
product is regarded to be liable as well, at least temporarily, until it can be determined who was in fact at blame.

The Tort Law Principles

These ideas can be explored in greater depth in other contexts; but, for the sake of offering a deeper
comprehension of tort law, I shall refer to them in the following in a nutshell:
1. Compensation — An action brought under the Tort law is heard in the civil courts, and the relief that is
typically sought in these courts is compensation, also known as damages or an injunction. The purpose of this
action is not to punish the wrongdoer or put the victim in the same position he would have been in if the
wrongdoing had not occurred; rather, it is to correct the wrongdoing and place the victim in the position he
would have been in had the wrong not been committed. Because of this, in the area of tort law, the amount of
damages is determined and given to the victim if it can be demonstrated that the wrongdoing was in fact carried
out.
2. The Concept of Injury Injuries and Damages Do Not Necessarily Go Hand in Hand This idea, which is
further articulated in Latin as damnum sine injuria and injuria sans damnum, refers to the fact that injuries and
damages do not always go hand in hand. The first concept is known as damnum sine injuria, and it states that a
person may sustain damage without having his or her legal rights violated. In certain circumstances, a tort
action cannot be brought against the defendant. This can be further clarified with the following example: If
someone starts a business next to your business, and you lose half of your customers to him, then you have
suffered an injury; however, none of your legal rights have been violated, and as a result, you are unable to take
legal action against this person.
When we talk about injuria sine damnum, we are referring to situations in which a person's legal rights are
violated without the individual suffering any kind of physical harm. Just because a person's rights were
infringed is sufficient grounds for a tort claim, even in the absence of any actual loss to the victim's property.
This is known as "strict liability." For instance, in the seminal case of Ashby vs. White, a polling officer
disallowed a citizen from casting a ballot, which resulted in the person's disenfranchisement of his right to vote.
However, the candidate that the person intended to vote for ended up winning the election, therefore there was
no actual damage done to the politician as a result of the citizen's vote. On the other hand, given that this action
constituted a violation of the citizen's right to vote, it was decided that the polling officer was responsible for
damages under the tort of damnum sine injuria.
3. The plaintiff in a tort action has the burden of proving the following in order to establish that a tort was
committed: the existence of a duty owed by the defendant to the plaintiff; this is typically referred to as the
reasonable responsibility to care for the plaintiff.
Infraction of this obligation
Injuries sustained by the plaintiff as a result of the defendant's breach of this obligation and Damages incurred
by the plaintiff as a result of such a breach of duty
However, depending on the specifics of the situation, it may or may not be possible to prove each of the
aforementioned components. In these kinds of cases, it is possible to prove not only that the defendant had
control over the circumstance or the instrument that resulted in the injury, but also that the injury was of such a
kind that it does not typically occur in instances where there is no negligence present. Because of the existence
of such a condition, the plaintiff's burden of proof is reduced, and such a situation is generated by the legal
principle known as res-ipsa-loquitur, which literally translates to "the object speaks for itself." For instance, res
ipsa loquitur may be applicable in a situation in which a pedestrian sustains injuries as a result of a large pot
that was left on an open window by the owner of an apartment. The owner of the apartment was responsible for
acting with ordinary prudence, but he did not do so when he left the pot on the window. As a result, the
pedestrian suffered injuries.
3. Vicarious Liability If the defendant has committed a tort while acting under the direct orders and supervision
of his seniors, then his seniors are vicariously liable for his act and are therefore held liable for it. This means
that if the defendant has been held liable, then his seniors will also be held liable. Accidents that occur here as a
result of food delivery people being in a rush to make their deliveries are a common occurrence. Under these
conditions, their firm is likewise considered to be equally accountable for the conduct that occurred.
4. Contributory Negligence — It is argued that a plaintiff has contributed to the negligence if the plaintiff is
found to be partially responsible for the wrongdoing, and this means that the plaintiff is not entitled to be
reimbursed for their injuries. For instance, if someone touches a coffee machine in spite of clear signs on the
machine that it is hot, and then later burns themselves as a result of their actions, that individual is unable to sue
the restaurant for their injuries. In this context, the principle of volenti non fit injuria can also be understood. It
means that if a person voluntarily places themselves in such a position knowing that it will cause him to be
injured and cause damages, then he is not later liable to claim for damages in the event that he is injured. This is
because the person knows it will cause him to be injured and cause damages. When this occurs, it is presumed
that the individual willingly accepted the risk, which means that they cannot hold anybody else accountable for
the outcome at a later date.
5. Joint and Several Liability in Tort - It is a well-established principle in tort law that when an injury is caused
due to the wrongdoing of two or more people, then, all of these people are liable to pay the compensation /
damages under tort. This is known as the joint and several liability doctrine. The Plaintiff also has the option of
pursuing compensation from just one of the defendants. In the case of UP State Road Transport versus Smt.
Rajani and Ors. 2007(2) AWC1867, this premise was also argued for.
6. Self-Defense: A defendant who is being sued for committing a tort has the option of claiming the self-
defense defence by asserting that the only reason he acted was to protect himself or his property from the threat.
This principle is generally recognised by the legal system, with the exception of unusual cases such as the one
that was recently heard by the Supreme Court of Iowa and titled Katko versus Briney 183 N.W.2d 657. (Iowa
1971). In this room, Mr. Briney had installed an automatic gun trap in his unoccupied house so that it would be
ready to shoot any burglars who broke in. Mr. Katko was killed after breaking into the house while it was
empty. In the end, he filed a lawsuit for assault. Mr. Briney claimed that he was acting in self-defense when he
defended his home from the intruder. On the other hand, the Supreme Court of Iowa ruled that it is
unreasonable to use a pistol to defend an uninhabited residence with the reasoning that human life and limb are
more essential than property.

CRITICAL ANALYSIS
In India, the Law of Tort is now undergoing a process of natural development, which is being complemented by
the codification of laws, particularly laws concerning damages. Despite the fact that India follows the strategy
used in the UK, there are certain key variations that may indicate judicial activism in India, which in turn
generates controversy. Since it is common knowledge that a tort is a violation of some obligation that is distinct
from a contract and that has resulted in harm being sustained by the victim, giving rise to a civil cause of action
and for which a remedy is available, we will begin by defining what a tort is. It is a well-established concept of
the Supreme Court that the Law of Tort is wholly formed and organised on the basis of morality.
This implies that no one has the right to deliberately or even unintentionally hurt or harm another person. The
court has the ability to use its civil jurisdiction in order to defend the rights of victims, inflict penalties, or issue
any orders that it deems appropriate. These may vary from case to case and be tailored to the specific
circumstances of each instance. In India, the law of tort is not codified like other laws and is still in the process
of developing. However, it is generally recognised that the law of tort is fully established and codified in
western countries such as the United Kingdom and the United States. However, the Law of Tort is considered
one of the most significant sub-branches of Indian law.

The question of whether or not India should have a law that governs torts has been debated there on numerous
occasions. Many times, the courts in India have held the position that tort law is necessary in India and is
beneficial to the expansion and development of the society. This view is shared by the majority of the judiciary.
In their decisions, the courts and the government have acknowledged the significance of torts by awarding
exemplary damages in cases of carelessness, providing recompense to victims of rape, and recognising
governmental torts, often known as torts committed by government personnel. In spite of this, the general
public has a limited understanding of tort law and rarely makes use of it. This is partly due to the fact that tort
law is not codified. In order for a person to grasp both his rights and responsibilities in accordance with the
rules regarding torts, it is necessary to explain the fundamental concepts and principles of tort law.

Conclusion
The purpose of this paper was to investigate the ways in which tort law and moral philosophy overlap. After
gaining an understanding of this area of the law, one is able to comprehend the myriad of factors at play, each
of which contributes to the establishment of the defendant in question's legal culpability. Although the concepts
are sound and on point when written down, it is extremely challenging to prove that the defendant is liable
because the circumstances surrounding each individual case are unique. In the end, the enforcement of the law
is of the utmost importance, and it is imperative that efforts be made to educate the populace.

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PAPER NAME AUTHOR
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