Vivekananda School of Law and Legal Studies

Vivekananda Institute of Professional Studies - TC

PSDA ASSIGNMENT

Course Name:
Law of Tort

Submitted to: Submitted by:

Mrs Insha Goel Vats Sankalp Gupta
VSLLS, VIPS-TC BA LLB-2C
1791770382
COMPARITIVE ANALYSIS OF LAW OF TORTS IN ENGLAND AND INDIA
INTRODUCTION

Word ‘Tort” has been derived from Latin term ‘tortum’ which means ‘to twist’. In general sense tort
means ‘wrong’. Law of Tort is based upon the English Law. It is a uncodified law. Tort basically means
any wrongful act which causes injury to any person. This branch of law consists of various ‘torts’ or

wrongful act whereby the wrongdoer violates some legal right vested in another person. Tort is a
private wrong. It is a right in rem i.e right against the whole world at large. Unliquidated damages are
provided. The person committing tort or wrong is called a tort-feasor or wrong doer, and his
misdoing is a tortious act. The principal aim of the law of torts is compensation of victims or their
dependants. Grant of exemplary damages in certain cases will show that deterrence of wrong-doers
is also another aim of the law of torts.

Definition given by Salmond of law of tort is- “A tort is a civil wrong for which the remedy is a
common law action for unliquidated damages, and which is not exclusively the breach of contract or
the breach of trust or other merely equitable obligation.”

Definition given by Winfield of law of tort is- “Tortious liability arises from the breach of a duty
primarily fixed by law, this duty is towards persons generally and its breach is redressable by an
action for unliquidated damages.”

ANALYSIS BETWEEN ENGLAND AND INDIA:

Comparing the law of torts between India and England involves examining various aspects such as
legal principles, statutory provisions, case law, and procedural rules. We should now examine each of
these one by one:

1. Legal Principles and Foundations:

England: In England, the law of torts is largely based on common law principles developed through
judicial decisions. Key principles include negligence, duty of care, strict liability, and trespass. English
tort law has evolved significantly through landmark cases, setting precedents that shape subsequent
decisions.

India: Similarly, Indian tort law is based on common law principles inherited from British
jurisprudence, but it's also influenced by statutory enactments and indigenous legal concepts. The
Indian legal system recognizes torts such as negligence, nuisance, trespass, defamation, and vicarious
liability. Additionally, principles of justice, equity, and fairness underlie Indian tort law.

2. Statutory Provisions:

England: While tort law in England is primarily judge-made, certain statutes have significantly
impacted tort liability. For example, the Occupiers' Liability Act 1957 and the Defamation Act 2013
provide statutory frameworks for specific torts.

India: In India, tort law is supplemented by statutes that address specific tortious liabilities. For
instance, the Consumer Protection Act 2019 provides remedies for consumer-related torts, and the
Motor Vehicles Act 1988 deals with tort liability arising from road accidents. Additionally, Indian
statutes like the Specific Relief Act 1963 and the Limitation Act 1963 affect tort litigation.

3. Case Law and Precedent:

England: English tort law heavily relies on case law and precedent established by higher courts,
particularly the House of Lords (now the Supreme Court) and the Court of Appeal. Landmark cases
such as Donoghue v Stevenson (1932) and Rylands v Fletcher (1868) have shaped fundamental
principles of tort law.

India: Similarly, Indian tort law is influenced by judicial decisions, with the Supreme Court and
various High Courts issuing significant judgments. Landmark cases like M.C. Mehta v. Union of India
(1987) and Rookes v. Barnard (1964) have contributed to the development of tort principles in India.

4. Procedural Rules:

England: Tort claims in England are governed by the Civil Procedure Rules (CPR) and follow the
adversarial system of litigation. Civil procedure rules outline the process for initiating claims,
disclosure of evidence, trial procedure, and appeals.

India: In India, tort claims are subject to the Civil Procedure Code (CPC) and follow an adversarial
system similar to England. The CPC lays down procedural rules for filing suits, service of summons,
pleadings, evidence, and appeals.

5. Development and Modernization:

England: English tort law continues to evolve through judicial decisions, adapting to societal changes,
technological advancements, and legal developments. Recent trends include expanding liability in
areas like data protection and cybersecurity.

India: Indian tort law is also evolving, with courts addressing contemporary issues such as
environmental pollution, medical negligence, and cyber torts. Legislative reforms and judicial
activism contribute to the modernization of tort principles in India.

6. Categories of Torts:

England: English tort law recognizes various categories of torts, including negligence, nuisance,
trespass, defamation, and strict liability. Each category encompasses specific elements and standards
of liability, developed through case law.

India: Similarly, Indian tort law covers a wide range of torts, including negligence, nuisance,
defamation, trespass, and vicarious liability. Statutory enactments and judicial decisions contribute
to defining and clarifying the elements of each tort.

RECENT CASE ON LAW OF TORT IN ENGLAND:

Manchester Building Society v Grant Thornton UK LLP

In Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 the Supreme Court has
clarified that the scope of the duty of care assumed by a professional adviser is governed by the
purpose of the duty, judged on an objective basis by reference to the purpose for which the advice is
being given

Facts:
In April 2006, Grant Thornton UK LLP (“Grant Thornton”) advised Manchester Building Society (the
“Society”) that it would be able to apply “hedge accounting” when preparing its accounts in
accordance with the International Financial Reporting Standards.

In reliance on this advice, between May 2006 and February 2012, the Society entered into 14 interest
rate swap agreements that were intended to hedge its cost of borrowing in respect of its lifetime
mortgage business. The Society also applied hedge accounting in its financial statements for each of
the years ending 31 December 2006 to 2011. These financial statements were audited by Grant
Thornton and, in each year, Grant Thornton signed an unqualified audit opinion and repeated its
advice that the Society was entitled to apply hedge accounting.

In 2013, Grant Thornton informed the Society that (contrary to the advice given in 2006 and
subsequently) it was not entitled to apply hedge accounting. The impact on the Society’s accounts
was significant: a £6.35m profit in the 2011 accounts had to be restated as a loss of £11.44m. As a
result of these corrections to its accounts, the Society did not have sufficient regulatory capital. The
Society took various steps to remedy this position, including terminating the swaps which had
become a substantial liability as a consequence of a fall in interest rates following the 2008 financial
crisis. On terminating the swaps, the Society was required to pay a break fee to the swap
counterparty, of approximately £32m. The Society brought proceedings against Grant Thornton to
try and recover these costs and other associated losses.

Judgement:

The High Court and Court of Appeal

Grant Thornton admitted that it had been negligent in its advice to the Society and in its audit of the
Society’s accounts for each of the years 2006 to 2011. However, Grant Thornton argued (inter alia)
that as a matter of law the losses claimed by the Society were neither caused by its negligence nor
within the scope of its duty of care.

The High Court found in favour of the Society on legal causation (i.e. that Grant Thornton’s
negligence had been an effective cause of the Society’s losses), but concluded that losses in respect
of the swap break costs were not within the scope of Grant Thornton’s duty of care. The Society’s
recoverable losses were therefore determined to be only £420,460 (in respect of other costs it had
incurred) and this amount was reduced in light of a finding of contributory negligence. The Society
appealed this decision.

Whilst the Court of Appeal technically took a different approach to the High Court in assessing the
scope of Grant Thornton’s duty of care, it reached the same result. The Society’s appeal was
therefore dismissed. The Society then took its case to the Supreme Court.

The Supreme Court

The issue before the Supreme Court was how to determine the nature and ambit of the scope of
duty principle and, in particular, how this applied to Grant Thornton’s role. To answer this question
the court needed carefully to analyse and interpret the principles established in South Australia Asset
Management Corpn v York Montague Ltd [1997] AC 191 (“SAAMCO”) and developed in subsequent
case law.

In this case, Lord Hodge and Lord Sales concluded that the purpose of Grant Thornton’s advice was
to establish whether the Society could use hedge accounting to implement its proposed lifetime
mortgages business model. Grant Thornton negligently advised that it could. As a result, the Society
pursued that business model, entered into the swap transactions and exposed itself to the risk of loss
from having to break the swaps (if, as transpired, it was not able to use hedge accounting and
volatility of the swaps exposed it to additional regulatory capital demands). That was a risk that
Grant Thornton’s advice was supposed to allow the Society to assess, and which its negligence
caused the Society to fail to understand. In reaching this conclusion, the majority reasoned that for
the purposes of analysing whether the Society’s losses fell within the scope of Grant Thornton’s duty
of care, it was important to have regard to the commercial reason for the advice as understood by
Grant Thornton, i.e. the particular impact of hedge accounting on the Society’s regulatory capital. In
particular, the use of hedge accounting would allow the Society to make an assessment that it could
proceed with the business of entering into swaps within its regulatory capital requirements.
Consequently, the break costs incurred by the Society when it turned out it had insufficient capital
resources were recoverable from Grant Thornton (but again subject to deduction for contributory
negligence).

Lord Leggatt and Lord Burrows agreed that the appeal should be allowed, but differed slightly in their
analysis and application of SAAMCO.

RECENT CASE ON LAW OF TORT IN INDIA:

Satyajit Gogoi vs The New India Assurance Co. Ltd And 2 Ors (2024)

Facts:

The case likely involves a motor vehicle accident where the plaintiff (Satyajit Gogoi) suffered
injuries or damages. The plaintiff may have filed a claim with their insurance company (The
New India Assurance Co. Ltd) seeking compensation for the losses incurred.

Issues:

The central issue may revolve around determining liability for the accident. This involves
establishing whether the defendant (driver or owner of the vehicle) was negligent or at fault
for causing the accident.

Another crucial aspect is assessing the scope of insurance coverage provided by The New
India Assurance Co. Ltd. This includes determining whether the policy covers the damages
claimed by the plaintiff.

Quantum of Damages: The court must also evaluate the extent of the plaintiff's injuries or
damages and determine the appropriate compensation to be awarded.

Judgement:

In this case, while deciding learned Member, MACT has held that the accident in question had taken
place due to negligence of the driver of the Ambasador car but the learned Member, MACT, has
decided the issue in favour of the claimant/appellant and concluded that as the accident occurred
due to rash and negligent driving by the driver of the Ambasador car, the claimants being the
mother, brother and sister of the deceased driver, they are not entitled to get any compensation. It
appears that the FIR was lodged by one S.I. of police. On the basis of his enquiry, the Tribunal has
come to the conclusion that the driver of the Ambasador car was responsible for causing the
accident.
Admittedly, in the present case the claimant No.1 who is the mother of the deceased had already
been expired. The other claimants are married sisters and brother of the deceased. It is apparent
that none of the petitioners are Class I legal heir of the deceased. From the evidence of PW 2 and 3,
who are brother and sister of the deceased, it cannot be ascertained that they are dependent on the
income of the deceased brother. Therefore, none of them could be treated as dependent of the
deceased.