Foreign tort

It has been said that if foreign tort law is applied it could to liability being imposed for tort unknown
to English law and it may effect in different interests from those recognised under English law.
Various solutions have been used in different countries over the centuries.
Factors
I. the place where tort was committed;
II. the residence
III. habitual relationship was centered.
Foreign tort
A tort which is committed abroad I,e the cause of action had arisin abroad
Kinds:
Tort of Realty: Nature of injury to land situated outside the country
Personal Tort: Nature of injury to person or movable property

THEORIES RELATING APPLICATION OF LAW TO FOREIGN TORT

1. The lex fori,
2. The lex loci deliciti
3. The proper law or social environment theory
The Lex fori the theory
The Lex fori the theory that tort liability should be governed by the lex fori is German origin. It was
advocate by savigny in 1849.
Theory of lex fori, was of the view that delictual liability was either akin to criminal liability, or else
closely connected with the fundamental principles of public policy applicable in the country of the
forum, and therefore it should be governed entirely by the lex fori.
Westlake, said that an action for tort, obtain damages for which the personal law of the defendant
does not provide.6
Lex Fori - Meaning
LEX FORI
[Latin, The law of the forum, or court.] The positive law of the state, nation, or jurisdiction within which a laws
uit is instituted or remedy sought.
The lex fori, or law of the jurisdiction in which relief is pursued, governs all procedural matters as dist
inguished fromsubstantive rights.
LEX FORI, practice. The law of the court or forum.

The forms of remedies, the modes of proceeding, and the execution of judgments, are to be regulat
ed solely andexclusively, by the laws of the place where the action is instituted or as the civilians unif
ormly express it, according to the lexfori
Lex Loci Deliciti
The application of the Lex Loci Deliciti is the prevailing doctrine on the continent of European
countries and USA.

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU

Generally, where the central issue in an action involves a tort, the court should apply the lex loci deliciti
rule in choosing which substantive law to apply.
In general terms it can be said that civil liability arising out of a wrong derives its birth from the law of
the place, and its character is determined by that law.
It is also said that lex loci delicti commissi is that application usually accords with legitimate
expectations of the parties.
The laws of torts attach certain kinds of conduct and to the certain social risk.
Lex loci delicti
lex loci delicti (commissi)
‘the place of the delict or the place where the delict was committed’, a term ofprivate international l
aw.
Lex loci delicti commissi means the law of the place where the tort was committed

The Proper Law of the Tort:

After 1949, and partly as a result of the writings of Dr. Morris, the theory of the proper law of the
tort acquired an increasing degree of prominence.
'It was suggested that effect of this theory was that most of the cases it will be lex deliciti commissi
theory.
"The rights and liabilities of the parties with respect to an issue in tort are determine by the local law of
the state which has to that issue, has tort are determined by the local law of the state which, as to that
issue, has the most significant relationship to the occurrence and the parties.“
Morris compares this theory with theory of proper law of the tort.
For there are many different kinds of tort as there are different kind of contract and as many issue in
tort cases as there are different issues in tort cases as there are in contract cases. Hence there is no one
mechanical formula and there is no uniform formula will produce satisfactory results when applied to
all kind of tort and to all kinds of issue

Boys Vs Chaplin
CA ([1968] 2 QB 1
The plaintiff had been injured in a road accident in Malta. By the law of Malta, non-economic damage
(pain and suffering, loss of amenity) was not actionable. Only financial loss was compensatable. The
plaintiff brought proceedings in England.
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta
would have denied certain elements of damages which would be available in this jurisdiction.
Held:
Held: Liability in respect of the road accident in which only English parties were involved was
governed by English law.
The House was asked whether the rule which excluded liability for non-economic damages was
substantive law or concerned only the remedies available. (Majority) The rule was part of the
substantive law of tort liability.

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU

This was a ‘general’ rule which would ‘normally’ apply to foreign torts. The rule should be interpreted
flexibly, ‘so as to leave some latitude in cases where it would be against public policy to admit or to
exclude claims’.
So far as damages are concerned it is a question for the substantive law whether a head of damage is
recoverable, but quantification of the actual head is procedural. The House also considered the double-
action ability rule.
Conditions
Conditions
1. Act must be unlawful at the place of commission
Philips Vs Eyre (1871)
1. Act need not be actionable there
MACHADO v. FONTES. (1897)
1. It should be not be a tort of pure local nature
Mostyn Vs fabrigas

(1774) 1 Cowp 161

1. The act should be actionable wrong at the place of suit
Philips Vs Eyre (1871)
Edward John Eyre had been the Governor of Jamaica during the Morant Bay rebellion. As Governor
he ordered a forceful response, which led to the deaths of numerous Jamaicans, and the arrest and
summary execution of various political figures whom Eyre believed to be instigators of the uprising.
At the end of his term as governor the colonial assembly had passed an Act of Indemnity covering all
acts done in good faith to suppress the rebellion after the proclamation of martial law
In 1865 Edward John Eyre, the Governor of Jamaica, in the course of suppressing a revolt, caused a
leading activist to be tried and executed under martial law.
Over the next three years, a group of leading politicians and thinkers in England attempted to have
Eyre prosecuted for murder.
When the criminal process failed, they attempted to have him sued for trespass and false imprisonment
Judgement
Exceptionally the case was heard by a bank of six judges. Willes J gave the decision of the court.
The Court held that Eyre could not be sued for his conduct in Jamaica. In order to bring an action
the claimant must satisfy two requirements.
First, the alleged conduct must "be of such a character that it would have been actionable if it had
been committed" in the local jurisdiction.
Second, "the act must not have been justifiable by the law of the place where it was done." That is, it
must be non-justifiable at the lex loci actus.
Due to the Act that Eyre passed just before leaving, the act was found to be justifiable by the law of
Jamaica and thus could not be actionable in England.

MACHADO v. FONTES. (1897)

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU
Facts :
The plaintiff brought this action in England to recover damages from the defendant for an alleged
libel upon the plaintiff contained in a pamphlet in the Portuguese language alleged to have been
published by the plaintiff in Brazil.
Libel is purely a criminal act in Brazil and a cause of action for damages is not maintainable
Held

Cyber torts
 “Cyber torts may be said to be those species, of which, genus is the conventional torts, and
where either the computer is an object or subject of the conduct constituting tort”. “Any
criminal activity that uses a computer either as an instrumentality, target or a means for
perpetuating further crimes comes within the ambit of cyber tort
 Meaning
“ unlawful acts wherein the computer is either a tool or target or both”.
 Mode And Manner Of Committing Cyber Tort

 Mode And Manner Of Committing Cyber Tort:

1. Unauthorized access to computer systems or networks/Hacking-This kind of offence is
normally referred as hacking in the generic sense. However the framers of The Information
Technology Act 2002 have no where used this term and also the term “unauthorised access”
has a wider connotation than the term “hacking”.

 Mode And Manner Of Committing Cyber Tort

 2. Theft of information contained in electronic form-
This includes information stored in computer hard disks, removable storage media, magnetic
disks, flash memory devices etc. Theft may be either by appropriating or rather misappropriating the
data physically or by tampering them through the virtual medium.

 Mode And Manner Of Committing Cyber Tort

3. Email bombing- This kind of activity refers to sending large numbers of mail to the victim, which
may be an individual or a company or even mail servers there by ultimately resulting into crashing.

4. Data diddling- This kind of an attack involves altering raw data just before a computer processes it
and then changing it back after the processing is completed. The Electricity Board faced similar
problem of data diddling while the department was being computerised.
 Mode And Manner Of Committing Cyber Tort

5. Salami attacks- This kind of crime is normally prevalent in the financial institutions or for the
Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU
purpose of committing financial crimes. An important feature of this type of offence is that the
alteration is so small that it would normally go unnoticed. E.g. The Ziegler case wherein a logic bomb
was introduced in the bank’s system, which deducted 10 cents from every account and deposited it in
a particular account.
 Mode And Manner Of Committing Cyber Tort

6. Denial of Service attack-

The computer of the victim is flooded with more requests than it can handle which cause it to crash.
Distributed Denial of Service (DDoS) attack is also a type of denial of service attack, in which the
offenders are wide in number and widespread. E.g. Amazon, Yahoo.
 Mode And Manner Of Committing Cyber Tort

7. Virus/worm attacks- Viruses are programs that attach themselves to a computer or a file and then
circulate themselves to other files and to other computers on a network. They usually affect the data
on a computer, either by altering or deleting it. Worms, unlike viruses do not need the host to attach
themselves to. They merely make functional copies of themselves and do this repeatedly till they eat
up all the available space on a computer's memory. E.g. love bug virus, which affected at least 5 % of
the computers of the globe. The losses were accounted to be $ 10 million. The world's most famous
worm was the Internet worm let loose on the Internet by Robert Morris sometime in 1988 which
almost brought the development of Internet to a complete halt.
 Mode And Manner Of Committing Cyber Tort

8. Logic bombs- These are event dependent programs. This implies that these programs are
created to do something only when a certain event (known as a trigger event) occurs. E.g. even
some viruses may be termed logic bombs because they lie dormant all through the year and
become active only on a particular date (like the Chernobyl virus).

9. Trojan attacks- This term has its origin in the word ‘Trojan horse’. In software field this
means an unauthorized programme, which passively gains control over another’s system by
representing itself as an authorised programme. The most common form of installing a Trojan
is through e-mail. E.g. a Trojan was installed in the computer of a lady film director in the U.S.
while chatting. The cyber criminal through the web cam installed in the computer obtained
her nude photographs. He further harassed this lady.
 Mode And Manner Of Committing Cyber Tort
 9. Trojan attacks- This term has its origin in the word ‘Trojan horse’. In software field this
means an unauthorized programme, which passively gains control over another’s system by
representing itself as an authorised programme. The most common form of installing a Trojan
is through e-mail. E.g. a Trojan was installed in the computer of a lady film director in the U.S.
while chatting. The cyber criminal through the web cam installed in the computer obtained
her nude photographs. He further harassed this lady.
 Mode And Manner Of Committing Cyber Tort

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU

  10. Internet time thefts- Normally in these kinds of thefts the Internet surfing hours of the
victim are used up by another person. This is done by gaining access to the login ID and the
password. E.g. Colonel Bajwa’s Case- the Internet hours were used up by any other person.
This was perhaps one of the first reported cases related to cyber crime in India. However this
case made the police infamous as to their lack of understanding of the nature of cyber tort.
 Mode And Manner Of Committing Cyber Tort

11. Web jacking-This term is derived from the term hi jacking. In these kinds of offences the
hacker gains access and control over the web site of another. He may even mutilate or change
the information on the site. This may be done for fulfilling political objectives or for money.
E.g. recently in the Case of MIT (Ministry of Information Technology) its site was hacked by
the Pakistani hackers and some obscene matter was placed therein. Further the site of Bombay
crime branch was also web jacked. Another case of web jacking is that of the ‘Gold Fish Case’.
In this case the site was hacked and the information pertaining to gold fish was changed.
Further a ransom of US $ 1 million was demanded as ransom. Thus web jacking is a process
where by control over the site of another is made backed by some consideration for it.

 Classification Of Cyber crime

1. Harassment via e-mails- H
2. Cyber-stalking
3. Dissemination of obscene material/ Indecent exposure/ Pornography (basically child
pornography) / Polluting through indecent exposure-
4. Defamation
5. Unauthorized control/access over computer system:
 Classification Of Cyber Tort.
6. E mail spoofing-
7. Computer vandalism:
8. Intellectual Property crimes / Distribution of pirated software:-
9. Cyber terrorism against the government organization

 United States v. Morris

 Facts. The Defendant was a computer science graduate student at Cornell University. In an
attempt to demonstrate the inadequacies of the security measures on computer networks, the
Defendant released a “worm” on the internet designed to spread across a wide network of
computers across the country.
 Defendant was thereafter convicted under the Computer Fraud and Abuse Act of 1986, and
he appeals on the ground that the government failed to prove he intended every element of
the offense.

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU

 Mass Torts
 § Introduction
 § Meaning
 § Mass torts vis a vis ordinary high volume litigation
 § Factors Facilitating Claiming
 § social influences have facilitated the filing of mass tort claims.- Media,
 Social Network, Physician contacts
 § Class Actions

 MASS TORT
 A mass tort is a single tort that results in injury to many victims
 Mass disasters have been the experience of many countries: Chernobyl, Bhopal, Minimata,
Three Mile Island, the Amoco-Cadiz and Exxon Valdez, Thalidomide and DES, the
ubiquitous asbestos, and many others
 Mass torts
Three types of disasters:
(1) single-event occurrences which simultaneously inflict injury on many individuals, like airplane
crashes or nuclear explosions;
(2) serial injuries ("creeping disasters") caused by the same product to numerous victims over a
period of time, like asbestos and pharmaceuticals;
(3) (3) toxic damage affecting persons or property over a given area.3
 Generally, most mass tort cases relate to some form of negligence, and the most
common types of mass tort claims are:

1. Consumer product claims.

2. Pharmaceutical claims.

3. Environmental torts.
 Factors facilitating claim
 The court will consider the following, among other things, when determining whether to give
permission:
1. Whether a large number of plaintiffs are involved;
2. Whether the plaintiffs are located near to or far from each other;
3. Whether the injuries suffered by the various plaintiffs are similar; and
4. Whether the claims made by the plaintiffs are associated with a common cause, such as a
single product or disaster.
 A mass tort action and class action

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU

Claim
 In a mass tort action, each plaintiff has an individual claim resulting from distinct damages,
and each plaintiff receives his or her own, separate trial.
 On the other hand, in a class action the many plaintiffs typically are not considered individually
and there is only one trial.
 A mass tort action and class action
 Recovery
 For the same reason, recovery for the individual victims is often much higher in mass tort
actions than in class action suits.
 Another advantage of the mass tort action is that the investigation and preparation that goes
into one case can often be transferred to another, greatly increasing the speed of the
proceedings.
 Laws
 Warsaw Convention (international flights),
 the Convention on Civil Liability for Oil Pollution 1969, following the Amoco-Cadiz
 Strict Liability
 Absolute Liability

 I. CAUSATION
 proof of causation
 The Indeterminate Defendant
 Sindell v. Abbott Laboratories.
 26 Cal.2d 588, 607 P.2d 924 (1980).
 This was a class action against some eleven man- ufacturers of a generic drug
DES, a synthetic estrogen used by pregnant women to prevent miscarriage
 "market share" theory
 CAUSATION
 The Indeterminate Plaintiff
 Class actions
 Class actions are predicated upon the four elements:
 Numerosity
 Commonality Of Facts Or Law,
 Typicality
 Adequacy of Representation.
 Class actions
 In addition the court must find that
 The questions of law or fact common to the members of the class predominate over any
questions affecting only individual members,
 That a class action is superior to other available methods for the fair and efficient adjudication
of the controversy.
 Exxon Valdez.
 https://www.youtube.com/watch?v=ERAkIvgnzW0
Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU
 Multiple factors have been identified as contributing to the incident:
 Beginning three days after the vessel grounded, a storm pushed large quantities of fresh oil on
to the rocky shores of many of the beaches in the Knight Island chain.[11] In this photograph,
pooled black oil is shown stranded in the rocks
 Exxon Shipping Company failed to supervise the master and provide a rested and sufficient
crew for Exxon Valdez. The NTSB found this was widespread throughout the industry,
prompting a safety recommendation to Exxon and to the industry.[12]
 The third mate failed to properly maneuver the vessel, possibly due to fatigue or excessive
workload.[12]
 Exxon Shipping Company failed to properly maintain the Raytheon Collision Avoidance
System (RAYCAS) radar
 Exxon Valdez
 Shortly after midnight on 24 March 1989, the Exxon Valdez grounded on a reef in Prince
William Sound in the Gulf of Alaska.
 The nearly 40 million litres of oil that spilled from the Exxon Valdez
 Ten years after the spill, ecologists estimated that between 100,000 and 700,000 birds had died
because of oil exposure,
 And in 2008, a US Supreme Court decision dramatically decreased the amount to be paid to
local people in punitive damages from $2.5 billion to $507.5 million, judging the initial award
as excessive under maritime law.

 The Thalidomide Tragedy

 https://www.youtube.com/watch?v=OsJlk1N4wa0
 In a post-war era when sleeplessness was prevalent, thalidomide was marketed to a world
hooked on tranquilizers and sleeping pills. At the time, one out of seven Americans took them
regularly.
 Thalidomide first entered the German market in 1957 as an over-the-counter remedy, based
on the maker’s safety claims. They advertised their product as “completely safe” for everyone,
including mother and child, “even during pregnancy,” as its developers “could not find a dose
high enough to kill a rat.” By 1960, thalidomide was marketed in 46 countries, with sales nearly
matching those of aspirin.
 In July of 1962, president John F. Kennedy and the American press began praising their
heroine, FDA inspector Frances Kelsey, who prevented the drug’s approval within the United
States despite pressure from the pharmaceutical company and FDA supervisors.
 Kelsey felt the application for thalidomide contained incomplete and insufficient data on its
safety and effectiveness.
 Among her concerns was the lack of data indicating whether the drug could cross the placenta,
which provides nourishment to a developing fetus.
 clinical trials
 The “clinical trials” of thalidomide involved distributing more than two and a half million
tablets of thalidomide to approximately 20,000 patients across the nation—approximately
3,760 women of childbearing age, at least 207 of whom were pregnant. More than one
Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU
 thousand physicians participated in these trials, but few tracked their patients after dispensing
the drug.
 Law
 Kefauver-Harris Drug Amendments Act in 1962, legislators tightened restrictions surrounding
the surveillance and approval process for drugs to be sold in the U.S

Mrs. Prabhavati Baskey, Asst Prof of Law, GNLU