Before we delve into the concept of morality in the law of tort, let us understand-
- What a tort is
- What morality is
Law of Tort
As per the definition of Winfield – “Tortious Liability arises from the breach of duty which is primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. “In simple terms, a tort can be defined as an act conducted by one person towards another person which causes some type of harm or legal injury to the other person. It is a civil wrong. The Essentials of Tort are- A legal injury, that is, a person’s legal right must get violated. Next, there must be Legal damage- i.e., the person must have suffered a particular loss or harm because of the legal injury. Lastly, the person must get monetary compensation for his legal damage.
Now let us understand what morality is. Morality is the conduct that tells you whether an act is right or wrong. Let us take an example.
Imagine that a person named A is a lawyer. Now two prospective clients come to A- who are a couple. The couple wants to have an exceptionally bright child. Because of this, they want to carry out genetic checks on their unborn child, so that any difficulty present within the child can be screened out. Now A as an advocate, realizes very well that this is indeed an abuse of genetic research, yet he started thinking about various illegal methods which he as an advocate can suggest to his clients. Now after lots of thinking, he came upon 2 options-
- He would reject their idea and declare that their action was illegal.
- He should go on with his declaration of all the illegal methods which the clients may conduct.
Now it is the first option that speaks about the morality of a person. While the second option is about immorality.
MORALITY IN THE LAW OF TORT
Now that we know what morality and tort are respectively, let us delve into the main topic of this article.
The tort law indeed has the concept of morality in it. However, morality in tort law is not prevalent in every area of the subject.
GENERAL DEFENCES IN TORT LAW AND MORALITY
• Volenti non fit injuria
This is a general defense under tort law, which says that no man can sue you for a tort to which he had voluntarily consented, which can be either explicit consent or implicit consent.
For example, A goes to a stadium to watch a cricket match, and somehow accidentally the bowler’s ball hit him, and he got injured. If we see the case in a detailed way, A indeed knew the risk- since he had voluntarily consented to it because he had gone to the stadium to watch the match. Therefore, the bowler was not liable.
In the context of morality, the bowler should have been responsible. This is because morality teaches us that a wrongdoer must face the consequences. Here, just because A had voluntarily consented, the bowler did not face any consequence of his wrongful act.
Note- There are some exceptions in this general defense. A plaintiff, when he had voluntarily encountered the risk to rescue another person from an imminent danger- which is created by the wrongful act of the defendant, then the defendant cannot save himself under the maxim of Volenti non fit injuria. It would be immoral to do so.
• Inevitable Accidents
Inevitable accidents can be defined as all those accidents which are physically unavoidable. No one- that is, the plaintiff or the defendant can avoid it at any cost.
Fardon v. Harcourt- Rivington
If we see the case of Fardon v. Harcourt- Rivington, the defendant had left his nice and calm dog in the car to go to someplace. Now, the plaintiff was passing by. Suddenly the dog became excited, and he broke the window glass, and the plaintiff was injured in the eye.
Here, the court held that the defendant was not liable.
In terms of morality, the court indeed gave a judgment based on morality- where it rightly considered the fact that it was not at all possible for the defendant to understand that his dog- who was usually nice, and calm can do something like this.
• Private Defense
As the name suggests, if a person does something to protect himself or herself, or his or her property, then it comes under the purview of private defense.
In these cases, the defendant cannot be held liable. It would be immoral to do so. Cases, where the defendant is not made liable under the purview of private defense, can surely be a moral one- if in those cases the act of the defendant was justified in nature, and he had done that act solely for his defense.
Note- As long as there was not an immediate threat to the safety of the defendant, he can be made liable, and it would be morally right to do so. For example- If a person, as a mere joke, pushes his friend, but the other person counted it as life-threatening and he takes a knife and stabs the former person, the latter cannot claim that he was acting under private defense. It would be immoral to do so.
Mistake is another general defense under the law of tort. This general defense is not following morality.
For example – Somebody is driving a bike and he did not stop the bike when the signal was red. He says that he does not know the law of the country. This under tort law is not justified, because as per the maxim Ignorantia juris non excusat, which means that ignorance of the law is no excuse, the act done that by the person was not justified.
Now as per morality, this was quite immoral. It is immoral because, in these cases, even if a person has done an act out of mistake, then also he shall be held guilty.
LEGAL MAXIMS WITH RELATION TO LAW OF TORT
Some legal maxims with relation to tort law, which are highly related to this topic are-
• Ubi jus ibi remedium
The maxim Ubi jus ibi remedium means that “where there is a right there is a remedy”. Thus, as per this maxim- if a right of a person has been infringed, as long as that particular right is recognized by law, then only the accused person can be convicted.
For example, in the landmark case of Bhim Singh v. State of Jammu and Kashmir, Bhim Singh was the MLA of the Jammu and Kashmir parliamentary assembly. One day, on his way to attend the parliamentary session, he was arrested wrongfully by a police officer and he was restrained to attend the session. There was a voting session in the parliamentary session and his vote was indeed crucial, and he was not able to give his vote. Although the person on whom he wished to give his vote had won, yet he filed a case since his legal right had been infringed.
Here the court held that the plaintiff was detained unlawfully, and the act was indeed unconstitutional under the violation of article 21. The act was an unlawful one, so the plaintiff had the right to seek a remedy from the court.
Now writing in terms of morality, this maxim is not under the purview of morality. This is because as per this maxim, if any person commits a wrongful act, but however it has no recognition in terms of law, then he shall be released without any punishment.
• Damnum sine Injuria
If we break the maxim- “damnum” means damage or monetary compensation. “Sine” means without and “injury” means legal injury. Thus, damnum sine injuria refers to damage without any legal injury.
Now as per this maxim, if there is not an infringement of any legal right, therefore no tort has been committed.
In the famous Gloucester Grammar School Case, the defendant was a schoolteacher in the plaintiff’s school. He left the school of the plaintiff and started his school. As the defendant was very famous among the students, students from the plaintiff’s school left and joined the defendant’s school. The plaintiff suffered monetary loss.
Now the court held that the defendant was not liable in this case- even though the plaintiff had suffered monetary loss, but no legal right has been violated.
This maxim again was not under the purview of morality. This is because, through this maxim, a person can be saved from punishment if he has not committed any legal injury.
• Res ipsa loquitor
The meaning of this maxim is “the thing speaks for itself”. Thus, the maxim means that- in cases of negligence, where the evidence of the case is not stated properly, but the facts are enough to prove the negligence of the defendant, then he shall be held as guilty.
In the case of Spring Meadows Hospital and another v. Harjol Ahluwalia, a minor was admitted to a hospital and the doctors declared that the minor boy was suffering from typhoid fever. The nurse asked his father to bring an injection for him. The father did so. As soon as the injection was given to the boy by the nurse, he collapsed. The doctor attended to the patient and declared that the boy had suffered from cardiac arrest. The doctor declared that he was in a major critical condition and there was not a single chance of his recovery. A case has been filed regarding the hospital authority’s negligence.
The Supreme Court in this case held that the hospital was negligent indeed and they had to provide compensation for their negligence.
This maxim falls under the purview of morality. Thus, through this maxim, a person (who has committed a wrong) can be punished, even if evidence of the case is not solid, but the facts are enough to prove the negligence of the person.
DUTY OF CARE IN TORT LAW AND MORALITY
Duty of care is an essential condition of negligence. The phrase “duty of care” means that every person owes a duty of care to another person while conducting an act. Although under negligence, the duty of care largely means “legal duty” but however it does not ignore the fact that the duty of care must be moral as well.
• Duty of care towards the plaintiff
The plaintiff must establish that the defendant owed him a duty to take care of which he has made a breach. In the landmark case of Donoghue v. Stevenson, On the evening of Sunday 26 August 1928, May Donoghue went to the Wellmeadow Café in Paisley. A friend, who was with her, ordered for Donoghue, Scotsman ice cream float. Donoghue drank some of the ice cream. However, when her friend poured the remaining ginger beer into the tumbler, a decomposed snail also floated out of the bottle. She was required to consult a doctor and was admitted to Glasgow Royal Infirmary for “emergency treatment” on 16 September. She was subsequently diagnosed with severe gastroenteritis and shock. The ginger beer had been manufactured by David Stevenson’s company.
The court held that the defendant(manufacturer) owed the final consumer(plaintiff) a duty of care.
Now speaking with context to morality, the duty of care establishes morality under tort law indeed. Where it is mentioned that a person must possess a duty of care to another person. And on the failure of doing so, it shall be said that he has done a breach of duty of care.
MASTER-SERVANT RELATIONSHIP IN TORT LAW AND MORALITY
The law of tort, based on the legal maxim “Respondeat superior “, which means that “let the principal be liable”, says that if a servant does a wrongful act in his course of employment, his principal or his master shall also be liable for it, along with the servant. Their liability is joint and several in nature- since they are considered to be joint tortfeasors. This means that the plaintiff here has a choice to bring an action against either or both of them.
In the context of morality, this was not moral- because it is said (in a moral sense) that one who has done a wrong act must face the consequences. But in a master-servant relationship, the master faces consequences too, even if he was not the one who had performed the wrongful act.
This article could be regarded as a debate article, where the sole purpose was to decide that whether there is morality in the law of tort. With regards to the final decision, it can be said that the law of tort has a certain percentage of morality included within it in some areas within the subject, but morality is not prevalent everywhere in the law of tort.
The Law of tort indeed has moral underpinnings, but not totally. In the modern-day scenario in the law of tort, it is observed that a wrongful act under the law of tort must be recognized by law. Tort law does not recognize and provide any type of punishment or compensation if the wrongful act is simply a social or moral wrong.
For example- A person named A sees one day that a stranger is drowning in a lake, and A fails to help the man. In this case, no liability can arise because it was only a moral wrong and not a legal wrong. Until and unless it can be proved that there was a legal duty to help the drowning man, it cannot be considered as a wrongful act under the law of tort.
Aheli Ghoshal, Amity University Kolkata, BA LLB, 1st YEAR