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 Rule of Law
Practical tort rules for timely justice
The Economic Times, India Thursday, June 24, 2010

There is a need to rewamp tort laws which in response to a private or civil wrong or injury provides redress through monetary compensation.A recent paper focuses on negligence based liability rules. It analyses what tort laws would be practical and implementable, writes Jaideep Mishra in Economic Times.

The recent lower court ruling pertaining to the Bhopal gas disaster of 1984 points at the pressing need to revamp torts law in India. Now tort is that field of the law where, in response to a private or civil wrong or injury, the courts provide redress and remedy by allowing lawsuits for (usually monetary) damages.

And the fact of the matter is that while most branches of law, crimes, contracts, property, trusts, etc., have been codified, there is yet no code for torts in India.


In the field of law and economics, the mavens have indeed been taking a closer look at the economic model of tort law. A recent paper in a leading international journal is on the issue of negligence-based liability rules under evidentiary uncertainty, such as when courts ‘make errors in assessing care’ and precautionary behaviour. The paper revisits the basic rationale for liability rules and asks whether and under what conditions ‘efficient precaution levels’ and safeguards are implemented, never mind imperfect information about injurer negligence.

The study analyses what tort rules would be practical and implementable, what informational requirements and evidence about injurer behaviour–say questionable factory operations–must be satisfied and what decision rules courts ought to apply when faced with ‘imperfectly informative evidence’. Further, the paper goes on to ask whether the decision rules can be formulated in terms of the legal concept of ‘standard of proof’, and whether general characteristics of the efficient standard can be formalised in practice.


It is a related matter that negligence-based liability has been one of the main preoccupations of the literature on the law of torts. The reasoning of course is that negligence liability induces efficient care on the part of the parties concerned, in potential risky activities. However, another expert view is that negligence-based liability generally neglects the ‘causal contributions’ of the parties involved in an accident.


And in jurisdictions of tort law where apportionment of liability in is accordance with causal principles, parties bear accident loss in shares proportional to their contribution to the causation of accident. Hence the thesis that causal appointment of liability is consistent with the principle of equity. It’s pointed out that the causality approach is already being used by some courts in the US.


There are still other norms for appropriating liability in tort laws, for instance a hybrid of the negligence-based rule and the causation approach. Under such a rule, the solely negligent party does bear the entire accident loss. However, the mishap loss is shared between the parties when either or both are negligent or both non-negligent. Abroad, there is much analysis of the relevant liability rules in tort law.


The paper uses lemmas, propositions and algebraic proofs to show that in situations involving bilateral precaution, efficient care is implemented through negligence-based rules that assign liability on the basis of the actionable behaviour of both the parties involved. Such a course of action is deemed ‘efficient’ provided the evidence is ‘sufficiently informative’ and courts use the relevant standard of proof as decision tool.

In rules that involve sharing the loss, for instance the notion of comparative negligence, the efficient standards of proof would be weaker and both defendant and plaintiff would be found negligent more often. In all cases, efficiency requires that a claim be proved only if it appears more likely than not by ‘some margin,’ concludes the paper.

This article was published in the The Economic Times on Thursday, June 24, 2010. Please read the original article here.
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