Vous êtes sur la page 1sur 16

CHANGES BROUGHT ABOUT BY THE LAW REFORMS ACT

SUBJECT: LAW OF TORTS

SUBMITTED TO:
MRS. SUSHMITA SINGH

SUBMITTED BY:
SUJAY KUMAR
ROLL NUMBER – 1654
1ST YEAR 1ST SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA


TABLE OF CONTENTS

ACKNOWLEDGEMENT……………………………………………..(ii)

RESEARCH METHODOLOGY……………………………………... (iii)

HYPOTHESIS…………………………………………………………

INTRODUCTION……………………………………………………...
LAW REFORMS FOR MINORS…………………………………………………..

a) Capacity to sue
b) Congenital disability act, 1976

LAW REFORMS FOR JOINT TORTFEASORS…………………………………..

Law Reform (Marrried Women & Joint tortfeasors) Act, 1935

LAW REFORMS FOR HUSBAND AND WIFE…………………………………...

a) Married Woman’s Property Act, 1882.


b) Law Reforms Husband & Wife Act, 1962.

CONCLUSION……………………………………………………………………..

BIBLIOGRAPHY…………………………………………………………………..
ACKNOWLEDGEMENT

I would like to thank my faculty MRS. SUSHMITA SINGH , whose assignment of such a
relevant topic made me work towards knowing the subject with a greater interest and
enthusiasm and moreover he guided me throughout the project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
sources of research materials throughout the project and without whom I couldn’t have
completed it in the present way.

I would also like to extend my gratitude to my parents, GOD and all those unseen hands who
helped me out at every stage of my project.
RESEARCH METHODOLOGY

This project is based upon doctrinal method of research. This project has been done after a
thorough research based upon intrinsic and extrinsic aspects of the project.

Sources of Data:

The following secondary sources of data have been used in the project-

.
1. Books
2. Websites

Method of Writing:

The method of writing followed in the course of this research project is primarily analytical.

Mode of Citation:

The researchers have followed a uniform mode of citation throughout the course of this project.
HYPOTHESIS

The researcher has assumed that In India contribution between joint


tortfeasors is still in doubt. There is no rigidness in judgements related to
this issue. And, there is no coded or uniformed laws for pre-natal injuries in
India.
INTRODUCTION
One important challenge for lawmakers is law reform. Society changes over time and so the
views and values of its citizens. Law reform is the process of changing and updating laws, so
that they reflect the current values and needs of modern society. Those responsible for making
our laws must identify and study shifts in values, behaviours and expectations; they must
consider whether new or amended laws are required; and they must develop and implement
these changes. Law reform is a perpetual or ongoing process: it never finishes. The law must be
flexible and receptive to change, so that stays fair, relevant and up to date. Above all, it must
serve the needs of the people. A law based on outdated or irrelevant values will only let down
the people it is intended to serve and protect. The law must also be able to respond to situations
and scenarios thrown up by a changing society, such as new forms of criminal activity.
Some of the ways that society changes, generating a possible need for law reform, include1:
Changing social values. Social values are the fundamental ideas we have about people and
society in general. They include ideas about race, gender, families, children, violence, personal
responsibility and behaviour, and the law itself. Social values tend to change quite slowly – but
they do change.
Changing morality. Individuals can be quite rigid in their views about what is ‘right’ and what
is ‘wrong’, shaped by upbringing, education and religious teachings. In the past, behaviours
such as homosexuality, adultery and promiscuity outraged individuals to such an extent that
society deemed them to be immoral or sinful. This was reflected in various laws that
criminalised these behaviours and imposed sanctions on those who engaged in them . Today,
society is generally better informed about the causes and the nature of these behaviours, so the
law has changed to reflect this.
Changing ethics. Like morality, ethics is concerned with what is right and wrong, though on a
social level rather than what offends the individual. Ethics considers whether specific practices
or decisions are fair to all involved and whether certain behaviours are both responsible and
acceptable.
Changing technology. As new technologies and medical advances are develop and come into
common use, they impact on the way people live and behave. They may also produce ethical

1
Datas have been taken from lawgovpol.com 2014
debates and dilemmas – and they may give individuals new avenues for offensive and
potentially illegal behaviour. The rapid expansion of the Internet, mobile phones and other
technological devices has provided lawmakers with new challenges. These technologies have
created behaviours that a decade ago were unlikely or even unheard of, such as software piracy,
‘phishing’, ‘sexting’, cyber-bullying and e-stalking.
Codifying legislation. This is a bill that sets an existing judicial precedent or statutory
interpretation into legislation. Codifying legislation ensures that these examples of court-made
law are fixed in law and not subject to change by future court decisions.
In this research project the researcher will focus on following law reforms act:
Law Reform for Minors: ‘injuries to unborn children’ in 1974, congenital disabilities (civil
liability) act, 1976
Law Reform for joint tortfeasors: law reform (married women and tortfeasors) act,1935
Law Reform for husband and wife: law reform (husband and wife ) act, 1962.
And The law reform (married women and tortfeasors) act,1935 .
LAW REFORMS FOR MINORS

CAPACITY TO SUE:
In English contract law, a minor is any individual under the age of 18 years. Historically, the
age had been 212. As to the capacity of a person to sue for damages in tort, the age is irrelevant.
The law recognizes the right of every individual to the safety of his person and properly, but as
a matter of procedural requirement, a person below the age of majority has to sue by his next
friend. As to pre-natal injuries, the law of torts, in general, is uncertain. There have been one or
two foreign instances of granting damages for such injuries.3 However, in India, no such case
has so far come before the courts, and it is generally opined that a child cannot maintain an
action for injuries sustained while in the womb4. Under the Fatal Accidents. Act, 1855, a child
has a right to sue for the loss occasioned by the death of his parent, as a result of an actionable
wrong, within the meaning of the Act. As a matter of procedure the suit has to be filed by
executor, administrator or representative of the deceased. However, the law is specific that the
damages, thereof, shall be for the benefit of child, in addition to that of wife, husband and
parent. Complicated legal problems have arisen, when injuries suffered by a child were partly
attributable to his contributory negligence. Negligence means want of ordinary care, i.e., "that
degree of care which may reasonably be expected of a person in the plaintiff situation.
However, the special position of a child, arising from immature judgment, has been duly
recognised by courts in this regard. This could be illustrated by a few cases. In Lynch v.
Nurdin5 the defendant left his house and cart unattended in a busy street. The plaintiff. a boy
under 7 years of age, climbed on the cart, and another boy led the horse on. The plaintiff fell
and broke his leg. In a suit for damages, the defendant contended that the plaintiff was guilty of
contributory negligence. Lord Denman dismissed this argument on the ground that the degree
of care, which might be expected of a young child of plaintiff's age, would be very small. A
slightly different note was struck, however, in an Indian case, namely, M. and S.M. Railway
Co. Ltd. v, Jayammalk In this case, a girl of 7 years was knocked down by an engine, while she

2
, until the Family Law Reform Act 1969
3
Winfield, TorI 722 (8th ed. 1967); Salmond, The Law of Torts 622 (14th ed. 1965).
4
Ratanlal, The Law ofTorts 23 (1973)
5
Ibid.
was crossing the railway line after passing through a wicket gate. It was held that the proximate
cause of the accident was the negligence of the girl in not looking out for a passing engine, and
a girl of her age ought to have been capable of appreciating the danger.

CONGENITAL DISABILITY (CIVIL LIABILITY) ACT 1976:


In a Canadian case Walker v. G N Rly Co. Of Ireland, the plaintiff, a child, sued the railway
company for damages on the ground that he had been born crippled and deformed because the
injury was caused to it by the negligence of the railway company when the plaintiff mother
travelled in the defendant’s railway. The defendants were not held liable because the
defendants did not owe any duty to the plaintiff as they did not about the existence of the
plaintiff.
Subsequently, in England the position on this point had been made clear by passing a
legislation and brought a law reform act i.e, congenital disabilities (civil liability) act 1976.

Recommendations of this act were as follow:

1) The action is allowed if the child is alive and disabled.6

2) Damages for the loss of expectation of life of such a child can be claimed, provided the
child lives for at least 48 hrs after his birth.7

3) Contributory negligence of the parents can be pleaded as a defence.8

4) Liability towards the child can be excluded or restricted by a contract made with the parent
of such a child.9

5) The acts permits an action not only for an injury to a child in the mother’s womb, but also
for acts prior to that.10

6) An action for injury to the child is permitted even against child’s mother if the harm to the
child is caused when she is guilty of negligence driving of a motor vehicle.11

6
(1933) 1 DLR .337
7
Winfield- the unborn child (1942)
8
Sec. 1(7), ibid.
9
Sec 1(6), ibid
10
Sec 1(2)(a), ibid
LAW REFORMS FOR JOINT TORTFEASORS
Joint tortfeasors are two or more persons who unite in committing a tort, or whose acts concur
in contributing to and producing a single indivisible injury upon a third person. When two or
more persons unite in the commission of a wrong, or where separate and independent acts of
negligence by different persons all concur as a proximate cause in producing an injury, such
wrongdoers are jointly and severally liable for the damage resulting there from. The liability
of joint tortfeasor is joint and several. The plaintiff has a choice to sue anyone of them, some of
them or all of them. In Sasidharan v. Sukumaran12, a wrongly parked truck was hit by a bus
driven rashly & negligently and a person sitting in the truck sustained some injuries. Tribunal
held that both the drivers were equally negligent. The injured was not entitled to claim the
entire amount of compensation awarded from driver, owner, insurance company of either of
the two vehicles as both drivers were not joint tortfeasosrs & their liability was not joint and
several.

Law Reform (Married Women & Joint Tortfeasors),1935 : At common law if judgment
was obtained against any of the join tortfeasors that resulted in the release of the other
tortfeasors, there was considered to be only one cause of action in favour of the plaintiff 13 and
therefore, if he had obtained judgment against any of the tortfeasors, it was assumed that the
cause of action merged with the judgment & the plaintiff was thereby barred from suing the
other joint tortfeasors. The common rule, being unjust, was abolished by the law reform
(married women &joint tortfeasors), act 19 35 and since then, an action against one or some of
the joint tortfeasors is no bar to action against other tortfeasors, who would also have been
liable for the same damage14. The law at present is contained in section 3 of the Civil Liability
(contribution) Act, 1978. Which says, the object of this provision is to avoid hardship to the
plaintiff who could not recover the amount of decree because the joint tortfeasors sued was
found insolvent. The Law Reform Act, 1935, has also authorized the court to grant complete
indemnity in case of joint tortfeasors. Section 6(2) of the act provides that the court shall have

11
Sec 2, ibid
12
2006 ACJ 945 (kerela).
13
London Association for protection of Trade v. Greenlands, (1916) 2 A.C. 15.
14
Section 6(1)(a), Law Reform Act 1935.
the power to direct that the contribution to be recovered from any person shall amount to
complete indemnity.

LAW REFORMS FOR HUSBAND AND WIFE

Married Women’s Property Act, 1882:

At common law, there could be no action between husband and wife for tort. Neither the wife
could sue her husband nor the husband could sue his wife, if the other spouse committed tort.
Married women’s property act 1882 made a change and permitted a married woman to sue her
husband in tort for the protection and security of her property. Her property included a chose in
action15. A claim in respect of injury caused by her husband to her before her marriage being
chose in action, she could sue her husband for the same after the marriage16.

Capacity of married women:


Subject to the provisions of this Part of this Act, a married woman shall—
(a) be capable of acquiring, holding, and disposing of, any property; and
(b) be capable of rendering herself, and being rendered, liable in respect of any tort, contract,
debt, or obligation; and
(c) be capable of suing and being sued, either in tort or in contract or otherwise; and
(d) be subject to the law relating to bankruptcy and to the enforcement of
judgments and orders, in all respects as if she were a feme sole.

In Case Where Husband Acts As Agent Of The Third Party:


Where the husband, while acting as an agent or servant for some third party, committed a tort
causing an injury to the wife, the wife could sue the third party. She is not debarred from
bringing an action against the third party merely because that for such injury her husband was
not liable to her. In Broom v. Morgan17, it was held that if a husband committed a tort against
his wife in the course of the employment of his master, the master was liable for the same.

Law Reform (Husband & Wife) Act, 1962 :

15
Section 24, married women’s property act, 1882.
16
Caris v. Wilcox, (1948) 2 K.B. 474, overruling Gottlifile v. Edelston, 1930.
17
1953, 1 Q.B. 597.
The rule prohibiting actions between spouses has been abolished by the Law Reform (Husband
& Wife) Act, 1962. Now the husband and wife can sue each other as if they were unmarried.
The act, however, places a restriction on an action during marriage by one spouse against
another and the court has been given a power to stay the action if it appears that no substantial
benefit will accure to either party from the proceedings, or the case can be more conveniently
disposed of under section 17 of the Married Women’s Property Act, 1882.

Husband’s Liability For Wife’s Torts:

At common law, if the wife committed a tort, there could be an action against both husband and
wife because the wife could not be sued alone. A husband was thus liable for the torts
committed by his wife after marriage 18 . Under the Married Women’s Property Act,1882, a
husband was also liable for pre-nuptial torts of his wife to the extent of the property he acquired
through her. But later on, The Law Reform (Married Women & Tortfeasors), Act 1935, has
changed the position and now the husband is not liable for any tort of his wife, whether
committed by her before or after marriage.

18
Edwards v. Porter, 1925 A.C. 1.
CONCLUSION
1) In India contribution between joint tortfeasors is still in doubt. There is no rigidness in
judgements related to this issue. In India, there is no legislation corresponding to the
English law reform act of 1935 or the Civil liability (contribution) act, 1978. In India
there is still a doubt that whether to accept the position as in England prior to 1935 or as
created by the act of 1935. In absence of legislation on the point or an authoritative
pronouncement by the supreme court, our courts are free to adopt the position which
they consider just according to the condition prevailing in this country.
2) India has no statue on prenatal injuries; common law accepts liability for prenatal
injuries. Till now the question as to liability of mother- to- be to her child in the womb
has not come up before our courts. Motor Vehicles Act, 1988 of India makes it
compulsory for a motor vehicle owner to undertake third party liability insurance19 .
Judicial opinion has limited "third party liability insurance" to persons outside the
vehicle20. Thus unless there is a 'comprehensive policy' or 'package policy' neither the
person driving nor persons inside the vehicle can claim insurance coverage. But such
package policy is not compulsory under Indian law. Even in cases where there is a
comprehensive insurance policy, the negligence of the driver will have to be established
for claiming compensation under the 1988 Act as the insurance is for covering liability
arising from fault. No fault liability insurance under the Act cannot be of great
assistance in compensating children who are born with prenatal injuries suffered by
motor accidents21 . Indian Courts when faced with the question of liability of the mother
to her child in the womb for injuries caused by negligence have the following options-
(1) hold the mother liable for negligence generally in all cases (2) decline to impose
liability for negligence in any case (3) hold the mother liable for negligence only in
motor accident cases. Children born with prenatally inflicted injuries need to be cared
for. Instead of seeking to fix the blame on mothers, compulsory insurance regime shall
be fortified. No fault liability in such cases shall be seriously considered. The society

19
Chapter XI Insurance of Motor Vehicles against Third Party Risks.
20
Yallwwa & Ors. V. National Insurance Co. Ltd., AIR 2007 SC 617.
21
S.140(2) provides for Rs. 25000/- as compensation in case of permanent disablement; however the right to sue
under tort law principles is preserved (S. 141)
shall collectively bear the responsibility. Through legislation a fund could be created to
compensate children with prenatally inflicted injuries.22

22
Justice Cory has made this suggestion in para 48 of the judgment in Dobson v Dobson.
BIBLIOGRAPHY

BOOKS REFERRED:
1) Law Of Torts, (23rd edition), Allahabad Law Agency………by Dr. R. K. Bangia.
2) Law Of Torts …………………………………………………..by Justice G.P.Singh.

WEBSITES REFERRED:
www.wikipedia.com
www.legalserviceindia.com

www. Legallyindia.co.in

www.lawcom.gov.uk

lawcommissionofindia.nic

Vous aimerez peut-être aussi