EVOLUTION, DEFINITION,
NATURE, SCOPE & OBJECTS OF
LAW OF TORTS
INTRODUCTION
• Law is bundle of rules which regulates the external behavior of individuals in society.
• Law of Torts is the branch of law controlling the behavior of people in the society.
• It is a growing branch of law and its main object is to define individual rights and
duties in the light of prevalent standards of reasonable conduct and public convenience.
• It provides pecuniary remedy for violation against the right of individuals.
• The entire Law of Torts is founded and structured on the principle that, ‘no one has a
right to injure another intentionally or even innocently.
INTRODUCTION
• The word tort originates from the French language.
• It is equivalent to the English word “wrong” and Romanian law’s term “delict”.
• It is derived from the Medieval Latin word “tortum” which means “wrong” or “injury”
which itself was further developed from the Old Latin word “torquere” which means “to
twist”.
• It is a breach of duty which amounts to a civil wrong.
• A tort arises when a person’s duty towards others is affected, an individual who commits
a tort is called a tortfeasor, or a wrongdoer.
• And where there are multiple individuals involved, then they are called joint tortfeasors.
Their wrongdoing is called as a tortious act and they can be sued jointly or individually.
• The main aim of the Law of Torts is the compensation of victims.
INTRODUCTION
• Term TORT was introduced in English law by NORMAN JURIST.
• HOW DID THE FRENCH WORD ‘TORT’ CAME TO INDIA?
The first courts were established by the British in
Madras, Bombay and Calcutta as Mayor’s courts
India
France
1065 conquered,
Spoken language in
the Courts in England
England
/ British
OBJECTIVES OF A TORT
• To determine rights between the parties to a dispute.
• To prevent the continuation or repetition of harm i.e. By giving orders of injunction.
• To protect certain rights of every individual recognized by law i.e. A person’s reputation.
• To restore one’s property to its rightful owner i.e. Where the property is wrongfully
taken away from its rightful owner.
TORT IS A CIVIL WRONG BUT ALL CIVIL WRONG ARE
NOT TORT
There are so many civil wrongs, some family law disputes are civil wrong, all contract law
issues are civil wrong, some of the property law issues comes under civil wrong, successions
act comes under civil wrong, and similarly similar offences are there in IPC too.
• Tort is basically the violation of one's legal right and thus counts as civil wrong.
• ALL TORTS ARE CIVIL WRONG BUT ALL CIVIL WRONGS CAN'T BE TORT, ALL
BREACH OF CONTRACT CAN BE CIVIL WRONG, BUT ALL BREACH OF CONTRACT
CAN'T BE TORT.
• EXAMPLE OF ‘TORT AS A CIVIL WRONG’ - BHOPAL GAS CASE (ABSOLUTE LIABILITY)
• EXAMPLE OF ‘CIVIL WRONG WHICH IS NOT A TORT’ – BREACH OF CONTRACT
BETWEEN EMPLOYEE AND EMPLOYER
DEFINITION
DEFINITION
• SALMOND – A ‘TORT’ is a CIVIL WRONG For which the remedy in common law is
action for UNLIQUIDATED DAMAGES, and which is not exclusively THE BREACH OF A
CONTRACT OR THE TRUST OR THE BREACH OF OTHER MERELY EQUITABLE
OBLIGATIONS.
ANALYSIS OF SALMOND’S DEFINITION
1. TORT IS A CIVIL WRONG
• A ‘Wrong’ can be civil or criminal,
• Injured party institutes civil proceedings against the wrongdoer and the remedy is
damages,
• Injured party is compensated by the defendant for the injury.
ANALYSIS OF SALMOND’S DEFINITION
2. TORT IS OTHER THAN BREACH OF CONTRACT OR BREACH OF TRUST
• Whether the wrong is civil or criminal.
• If it is civil wrong – need to recognized category of the civil wrong, such as breach of
contract,
• If the wrong does not lies under any such categories then the wrong is tort.
• Two or more injury injured party decides to go for damages under Tort or Civil wrong.
3. TORT IS REDRESSABLE BY ACTION FOR UNLIQUIDATED DAMAGES
• Damages is the most important remedy for a tort.
• The monetary compensation which can be awarded to the injured party.
DEFINITION
• DR. WINFIELD – TORTIOUS LIABILITY ARISES FROM BREACH OF DUTY PRIMARILY
FIXED BY THE LAW. This DUTY IS TOWARDS PERSON generally and its BREACH IS
REDRESSABLE BY AN ACTION FOR UNLIQUIDATED DAMAGES.
ANALYSIS OF WINFIELD’S DEFINITION
1. DUTY PRIMARILY FIXED BY LAW
• Duty is fixed by Law and not by any agreement between parties,
• As per Winfield’s definition, liability arises from the breach of such duties fixed by law.
• Any person who commits such a breach can be proceeded against in a court of law by
the person whose rights are breached.
• Certain situation where the breach is not done by the person but still be held Liable
(Vicarious Liability).
ANALYSIS OF WINFIELD’S DEFINITION
2. DUTY IS TOWARDS PERSONS GENERALLY
• Duty is towards person generally and not against some particular person.
• This character distinguishes tort from contract, bailment and quasi-contract.
3. ACTION FOR UNLIQUIDATED DAMAGES
• Damages are unknown and unquantified,
• Court decides the quantum of damages based on merits of the claim and circumstances of
the case.
CRITICISM OF WINFIELD’S DEFINITION
• The phrase 'duty towards persons generally' is vague and not adequate to include duties
arising from special relationships like doctor and patient etc., and to exclude duties arising
between guardian and ward or trustee and beneficiary etc. which fall outside the ambit of
law of tort.
• The phrase 'liability arises from the breach of duty', may be true at an earlier stage of
development of law of tort, but it is not applicable or appropriate to an important
category of liability at the present day, for example, vicarious liability of a master for his
servant’s
• ‘Unliquidated damages’ is not the only remedy. There are other remedies such as self-help,
injunction and specific restitution of property also available.
DEFINITION
• POLLOCK’S – ‘Tort’ is an act or omission (not merely the breach of a duty arising out of
a personal relation, or undertaken by contract) which is related to a harm suffered by a
determinate person, giving rise to a civil remedy which is not an action of contract.
• FRASER – Tort is an infringement of a right IN REM (Public Right) Of a private individual
giving a right of compensation at the suit of the injured party.
• LIMITATION ACT 1963 – SEC 2 (M) OF THE LIMITATION ACT 1963 Defines “Tort means a
civil wrong which is not exclusively a breach of contract or trust.”
LAW OF TORT OR LAW OF TORTS
FOUNDATION OF TORTIOUS LIABILITY – 2 THEORIES
There is a difference of opinion amongst jurists as to what constitutes the foundation of
tortious liability. There are two theories with regard to the basic principle of liability in the
law of torts or tort.
• WIDER AND NARROWER THEORY- All injuries done by one person to another are torts,
unless there is some justification recognized by law. (Law of TORT)
• PIGEON HOLE THEORY- There is a definite number of torts outside which liability in tort
does not exist. (Law of TORTS)
• So is it LAW OF TORT OR LAW OF TORTS?
WIDER AND NARROWER THEORY – LAW OF TORT
• Theory is supported by WINFIELD, POLLOCK and other eminent jurists.
• The underlying principle here is that ALL UNJUSTIFIABLE HARMS ARE TORTS. It may be
assault, battery, deceit, slander, negligence, or, it may not even have a name at all.
• When a tort is specific, it is narrowed down to a particular wrong.
• But when it is not specific, and considered at a wider level that all harms without legal
justifications are torts, then, it is in a wider sense.
• Example – if I cause injury to my neighbour then he can sue me for damages even though
there may be no particular name of my wrongful act such as Assault, Battery, Deceit or
Slander etc.
• Lord Camden said – “TORT ARE VARIOUS, NOR LIMITED, NOR CODIFIED.”
PIGEON HOLE THEORY – LAW OF TORTS
• Theory is supported by SALMOND, GLANVILLE WILLIAMS and others.
• There are definite number of Torts , outside which liability in Tort does not arise.
• The law of Torts consist of a ‘net-set’ of pigeon holes, each containing a specific tort such
as assault, battery, deceit, slander, negligence, etc., If the defendant’s wrong does not fit
in any of these pigeon holes, then he has committed ‘no tort’.
• Glanville William says that pigeon holes can be copious as well as multipliable /
expandable.
• Salmond said “JUST AS THE CRIMINAL LAW CONSISTS OF A BODY OF RULES
ESTABLISHING SPECIFIC OFFENCES, SO, THE LAW OF TORTS CONSISTS OF A BODY OF
RULES ESTABLISHING SPECIFIC INJURIES. NEITHER IN THE ONE CASE NOR IN THE OTHER
THERE IS ANY GENERAL PRINCIPLE OF LIABILITY.”
CONCLUSION
• BOTH THE ABOVE THEORIES ARE CORRECT in the sense that they are from different
points of view.
• One seems to be a broader perspective, other signifies a narrower approach.
• Tort has grown over the years giving rise to new areas of torts such as strict liability,
absolute liability and so on, In the last few decades, new branches of laws like consumer
protection laws, defamation laws and the like, are in place.
• Whether these can be seen as new branches of a growing tree, or new array of pigeon
holes, both approaches can be accommodated as valid points of view.
ESSENTIALS OF A TORT
ESSENTIALS OF A TORT
There are certain conditions which must exist before a person is held liable in TORT. After
examining the various definition related to TORT these are the elements –
• Wrongful Act,
• Legal Damage,
• Legal Remedy
WRONGFUL ACT
• In order to make a person liable for a tort, he must have done some act which he was not
expected to do, or, he must have omitted to do something which he was supposed to do.
• Illustration – A commits the act of trespass or publishes a statement defaming another
person, or wrongfully detains another person; he can be made liable for trespass,
defamation or false imprisonment, as the case may be.
• One must note that the wrongful act or a wrongful omission must be one recognized by
law. If the act does not violate legal rights of another person, it is not TORT.
• Violation of Moral, Social & Religious duties does not come under the category of
TORTS.
WRONGFUL ACT
• GLASGOW CORPORATION V. TAYLOR, (1922) 1 A.C. 44
https://youtu.be/RoAicwDUD4k
The court held that the Glasgow corporation was liable in this instance. They had permitted
children to go on to the land and it is understandable that the berries would have
appealed to visiting children, thus representing a danger. The defendants were aware of
this danger caused by the poisonous berries and did nothing to prevent the damage. On
this basis, the action was required to proceed to trial.
• MUNICIPAL CORPORATION OF DELHI V. SUBHAGWANTI, AIR 1966 SC 1750
Municipal Corporation, having control of a clock tower in the heart of the city does not
keep it in proper repairs and the falling of the same results in the death of a number of
persons, the Corporation would be liable for its omission to take care in the matter.
WRONGFUL ACT (NEGLIGENCE)
• Negligence constitutes an independent basis of tort’s liability. It means which creates a
risk of causing damage, rather than the state of mind.
• According to Winfield, “negligence as a tort is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff”.
• HEAVEN V. PENDER, (1883) 11 QBD 503
Negligence defined as an “actionable negligence consists in the neglect of the use of
ordinary care or skill towards a person to whom the defendant owes the duty of observing
ordinary care and skill by which neglect the plaintiff has suffered injury to his person or
property.”
LEGAL DAMAGE
• In order to be successful in an action for tort, the plaintiff has to prove that there has
been a legal damage caused to him.
• In order to prove an action for tort, the plaintiff has to prove that there was a wrongful
act, an act or omission by the defendant which through its breach of a legal duty led to
the violation of a legal right vested in the plaintiff. So, there must be violation of a
legal right of a person and, if it is not, there can be no action under law of torts.
• This makes it necessary to discuss the following two maxims:
1. Damnum Sine Injuria;
2. Injuria Sine Damno
LEGAL DAMAGE – DAMNUM SINE INJURIA
• Damnun means Damage in the form of Money, Comfort & Health,
• Injuria means Violation of legal rights &
• Sine means without.
• Damnum sine Injuria is a legal maxim which refers to as damages without injury or
damages in which there is no infringement of any legal right which are vested with the
plaintiff.
• No legal right has been infringed so no action lies in the cases of damnum sine injuria.
• The general principle on which this maxim is based upon is that if one exercises his
common or ordinary rights, within reasonable limits, and without infringing other’s legal
right; such an exercise does not give rise to an action in tort in favour of that other
person.
• Damages can be in any form either in the form of any substantial harm or loss suffered
from respect to the money, comfort, health, etc.
LEGAL DAMAGE – DAMNUM SINE INJURIA
• GLOUCESTOR GRAMMER SCHOOL (1410)
• The plaintiff was running a school at a place. The defendant started another school near
the school of the plaintiff. As a result of this most of the students of the plaintiff left his
school and joined defendant’s school. Due to competition the plaintiffs had to reduce
their fees from 40% to 12% student per quarter and thus he suffered huge monetary loss.
The plaintiff filed a suit against the defendant in the court for compensation. It was held
that the plaintiff was not entitled to any compensation.
• Every person has a right to carry on his trade or profession in competition with others and
if as a result of healthy business competition his rival suffers a loss then he is not entitled
to recover any compensation.
• Here the plaintiff by settling up his school near the plaintiff’s school had exercised his
legal right and, therefore, no action can lie against him.
LEGAL DAMAGE – DAMNUM SINE INJURIA
• MOGUL STEAMSHIP CO LTD V MCGREGOR, GOW & CO [1889] LR 23 QBD 598
A number of steamship companies combined together and drove the plaintiff company out
of the tea-carrying trade by offering reduced freight. The House of Lords held that the
plaintiff had no cause of action as the defendants had by lawful means acted to protect
and extend their trade and increase their profits.
• CHESMORE V RICHARDS, (1859) 7 HLC 349
Plaintiff was the owner of the mill. He has been using the water from a stream for about
sixty years. The defendants dugs a well on their land as a result of this plaintiff’s mill
stopped getting water from the stream. It was held that the defendants were not liable for
the loss caused to the plaintiff because the defendants had legal right to dig a well on his
own land.
LEGAL DAMAGE – INJURIA SINE DAMNO
• Injuria means not just a physical injury, but an infringement, or, a violation of a legal right,
or invasion of individual interests.
• Damnum means substantial harm, loss or damage in respect of money, comfort, health or
the like.
• Sine means without.
• Injuria Sine Damno means violation of a legal right without causing any harm, loss or
damage to the plaintiff.
• Violation of legal rights of a person is actionable, whether it has caused any real harm or
loss to him or not.
LEGAL DAMAGE – INJURIA SINE DAMNO
According to Salmond TORTS are of two types –
1.
Those torts which are actionable PER SE, i.e. actionable without the proof of any
damage or loss.
Illustration : Trespass to land is actionable even though no damage has been caused as a
result of the trespass;
2. The torts which are actionable only on the proof of some damage caused by an act.
Illustration : If a tenant makes improvements to the property leased without the right to do
so, the tenant commits the tort of waste and is liable for damages even though the premises
may be improved and rendered more valuable by the alterations.
LEGAL DAMAGE – INJURIA SINE DAMNO
• ASHBY VS. WHITE (1703)
The plaintiff was a qualified voter at the parliamentary elections which were held at that
point of time. The defendant, a returning officer wrongfully refused to take the plaintiff’s
vote. The plaintiff suffered no damage since the candidate which he wished to vote already
won the elections but still, the defendants were held liable. It was concluded that damage is
not merely pecuniary but injury imports a damage, so when a man is hindered of his rights
he is entitled to remedies.
LEGAL DAMAGE – INJURIA SINE DAMNO
• BHIM SINGH V. STATE OF J. & K. AIR 1986 SC 494
The petitioner, an M.L.A. of Jammu & Kashmir, was wrongfully detained by the police while
he was going to attend the Assembly session. Further he was not produced before the
Magistrate within the requisite period. As a consequence of this, he was deprived of his
constitutional right to attend the Assembly session. There was also violation of fundamental
right to personal liberty guaranteed under Article 21 of the Constitution.
By the time the petition was decided by the Supreme Court, Bhim Singh had been released,
but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were
awarded to him.
LEGAL REMEDY
UBI JUS IBI REMEDIUM
• The word “jus” means legal authority to do something or to demand something.
• The word “remedium” means that the person has the right of action in the court of law.
• The literal meaning of the maxim is where there is a wrong there is a remedy.
• If any wrong is committed then the law provides a remedy for that. The maxim can be
phrased as that any person will not suffer a wrong without a remedy, it means that once it
is proved that the right was breached then equity will provide a suitable remedy.
LEGAL REMEDY – UBI JUS IBI REMEDIUM
• There are many moral and political wrong but are not actionable or it does not give
many sufficient reasons to take legal action as they are not recognized by law. The maxim
does not mean that there is a legal remedy for each and every wrong committed.
• For example, a contract which was required to be made on stamped paper may be
made orally; in such circumstances, irrecoverable harm may be caused to other person
and yet no legal remedy is available.
• ASHBY VS. WHITE (1703)
• BHIM SINGH V. STATE OF J. & K. AIR 1986 SC 494
LEGAL REMEDY – UBI JUS IBI REMEDIUM
• ESSENTIALS OF UBI JUS IBI REMEDIUM
1. The maxim ubi jus ibi remedium can be applied only where the right exists and that right
should be recognized by the court of law;
2. A wrongful act must have been done which violates the legal rights of a person clearly.
3. This maxim can be used only when sufficient relief has not been provided by the court to
the person who sustained the injury.
4. This maxim is applicable if any legal injury had been caused to any person, if no legal
injury has been caused then the maxim damnum sine injuria will be used which means
damage without any legal injury.
LEGAL REMEDY – UBI JUS IBI REMEDIUM
• LIMITATIONS OF UBI JUS IBI REMEDIUM
1. The maxim ubi jus ibi remedium does not apply to moral and political wrong which are
not actionable.
2. This maxim is not applied to those cases in which proper remedy is given in case of
breach of right under common law.
3. If there is no legal damage which has been caused to any person then this maxim will not
be applicable.
4. No remedies are available in case of breach of marriage vows or personal commitment
as these all are the promises made without consideration and are based on trust.
5. This maxim is also not applicable in case of public nuisance unless and until a plaintiff
shows that he suffered more injury than other members or peoples of the society.