LAW OF TORTS

Law of Torts:
Origin
The 'Law of Torts' owes its origin to the Common
Law of England. It is well developed in the UK,
USA and other advanced Countries. In India, Law
of Torts is non codified, like other branches of law
eg: Indian Contract Act, 1872 and Indian Penal
Code, 1860. It is still in the process of
development.
A tort can take place either by commission of an
act or by omission of an act. In simple words, Tort
is a Civil / Legal Wrong. Tort Law is one of the
important branches of Civil Law. It has attained
greater importance in England and other Western
Countries.
Meaning:

The word Tort is derived from a Latin word 'Tortus'

which means 'twisted' or 'crooked act'. In English
it means, 'wrong'. The Expression 'Tort' is of
French Origin.
The term 'Tort' means a wrongful act committed
by a person, causing injury or damage to another,
thereby the injured institutes (files) an action in
Civil Court for a remedy viz., unliquidated
damages or injunction or restitution of property or
other available relief. Unliquidated damages
means the amount of damages to be fixed or
determined by the Court.
Examples
•Denail of individual legal rights
•Failure to comply legal duty
•Failure to perform private duty

Remedies
Compensation to the victims
Normally monetary in nature
Also awarded for pain and suffering
By replacing/ repairing the damaged
product
Punitive damages in serious cases
RIGHTS:
Right in personam: Against a particular person
Right to education
Right In rem: Against the whole world
Right to property

Law: Rights and Obligations(Duties)

How are tort cases determined?
•No statutory law in India- Court made law

•Based on Common Law principles- Justice, Equity

and Good Conscience

Kinds of Tortuous Act: Defamation, Trespass,

Negligence, Nuisance
All the above acts are criminal in nature. But under
criminal procedure the punishment is imprisonment
or fine.
But under civil procedure unliqidated (not
determined) damages as can be claimed as
compensation.
Parties:
The person who commits or is guilty of a tort is
called a "tortfeasor".
The person who suffered injury or damage by a
tortfeasor is called injured or aggrieved.
Tort is a common law term and its equivalent in
Civil Law is "Delict".
In general, the victim of a tortious act is the
plaintiff in a tort case.
As a general rule, all persons have the capacity to
sue and be sued in a tort.
Tort Law provides an avenue for an injured person
of a remedy. It does not provide a guarantee of
recovery.
DEFINITIONS:
1. According to Section 2(m) in The Limitation Act, 1963, “tort”
means a civil wrong which is not exclusively the breach of a
contract or the breach of a trust.
2. According to Prof. Winfield, Tortious Liability arises from
breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressable by an action for
unliquidated damages.
3. According to Sir John Salmond, tort as a civil wrong for
which the remedy is common law action for unliquidated
damages and which is not exclusively the breach of contract
or the breach of trust or other merely equitable obligation.
4. According to Fraser, tort is defined as “an infringement of a
right in rem of private individuals giving a right of
compensationsat the suit of injured party”.
5. According to Clark and Lindsell: "Tort is a wrong
independent of contract for which the appropriate remedy is a
common law action."
6. According to Under Hill- Tort will arise by the breach of duty
and the remedy of tort is damages.
CONT..
On the basis of these definitions it may be said
that three distinct factors are essential to
constitute a tort:
(i) There must be an act or omission which
amounts to a civil wrong,
(ii)Such act or omission should not be breach of
contract, trust etc.,
(iii) The remedy for such wrongful act or omission
should be an action for unliquidated damages.
Evolution:
It was introduced by the French speaking lawyers and
Judges of court of Normandy and Angevin Kings of
England.
An action was commenced by royal writs, issued by
special department of government known as officina
brevium (or writ shop).
Plaintiff has to choose the correct or appropriate writ and
pay for it.
“Ubi remedium Ibi Jus”: there was no writ, there was no
right.
Stage II:
Writ of Trespass: Remedied the Injuries (torts). Direct and
immediate injury to person, property or land.
Trespass on Case: Indirect or consequential injuries.
This procedure continued for some 500 years.
Cont..
In 1852, Common law procedure Act, 1852.
“Ubi jus ibi remedium” where there is a right there must
be a remedy.
Facts were given more importance than the procedure.
Evolution in India:
Hindu law and Muslim Law, Torts had narrower
conception than tort in English law.
Punishment for crime occupied more prominent place
than compensation for wrong.
The English law of torts was made appealing to the
Indian conditions to principle of Justice, equity and
good conscience.
Origin lies with establishment of British courts in India.
TORT AND CRIME:
What is a crime?
What is a tort?
In what kind of court is a criminal case heard?
In what kind of court is a tort case heard?
What two things must a plaintiff prove in order to
win a tort case?
Can the same act be both a crime and a tort?
 BREACH OF
TRUST

BREACH OF
CIVIL WRONG
CONTRACT

COMPENSATION TORT/OTHER
WRONG
WRONG

CRIMINAL HURT
WRONG

FINE/ CULPABLE
IMPROSENMENT HOMICIDE

MURDER/RAPE/KI
DNAP
Consider these three events:
Mary sells heroin to Jack.
Steve, not looking where he is going, knocks Mrs.
Frayle down.
During an argument, Linda slaps Beth in the face.
Which do you think would be a crime? Which a
tort?
 Tort Crime
Private Wrong- Public wrong- breach of
Infringement of private public rights and duties
rights
Case initiated by affected Case initiated by state
party
Suit for damages Suit for punishment
Mens rea not necessary Mens rea is inevitable
Compensate the injured Punished by the State
party
Compounding possible Compounding not possible
Not codified Codified
Standard of Proof: Balance Standard of Proof: Beyond
of Probabilities and burden reasonable doubts and
Historical Background of Tort and Crime
•As compared to torts, criminal law is a late
development
•Ancient times- compensation as a mode of punishment
•Idea of private vengeance &self-help existed over public
justice
•Hindu Law- compensation for trespass of cattle,
damage of goods and bodily injuries
oEnglish customary practice
wer- price payable on death
bot- payment for personal and other injuries
•With modern civil society- criminal administration
came
•No role for private vengeance
•Civil justice- Self help
•One common element of both tort and crime
 Violation of general duty by a person to the public
•A single act can be crime as well as tort- eg: Assault
•Bodily safety is violated, hence damages to be given- Tort
•Can create menace in society, hence punished by state- crime
[Link] v UOI AIR 1994 SC 1844- No ac tual
difference b/w tort and crime- both ultimately harm
 Tort Contract
Inflicted against/without Founded upon consent
consent
Duty owned to persons Duties to the parties of the
generally (right in rem) contract (right in personam)
Duty fixed by law Duty fixed by parties itself
Liability is not by agreement Agreement is base of liability
Damages not limited- Damages are stipulated-
backward looking forward looking
Unliquidated damages Liquidated damages
Motive is immaterial Motive is material
Protect non economic Protect economic interests
interests
Vicarious liability applicable N/A
Doctrine of privity of contract Applicable
not applicable
ILLUSTRATION:
Examples:
(a) A has obtained a water drum from B on a contract with a
condition to return it within two days. A has not re-delivered
water drum to B after two days.
A intends to retain it for himself. Thus he makes a breach of
contract and also conversion. His act is a breach of contract,
because he promised expressly to return water drum.
it is also not merely a breach of contract, and therefore also a
tort, because he would have been equally liable for detaining
and other man’s property, even if he had made no such
contract all.
(b) A is the car owner. B has taken A’s car on hire. There is a
contract between A and B. From B, C has taken the car and
damaged it.
There is no direct relation between A and C. it is true that apart
from the contract between A and B, C is liable to A.
B made a breach of contract. C has put himself in such a
situation that he cannot break the duty. There was omission to
take care on the part of C. It is a tort.
CASE LAW:
Sharad Vaidya (Dr) v. Paulo Joel Vales AIR 1992 Bom
478
• Death due to negligence and recklessness of doctor
• Not contract- It is a tort

Pippin v. Sheppard (1882) 11 Price 400

• Husband called a surgeon to treat his wife
• Negligence by the doctor
• Husband sue under contracts- Parties to the contract
• Wife action under tort- As injured person
 Austin v. [Link] (1867) LR 2 QB 442- Blackburn J
• A women and her child travelled in the train
• Railway negligence- child injured
• Child can recover damages

 Doctrine of Privity of Contract- Stranger cannot sue

 Not applicable in torts

Donoghue v. Stevenson 1932 AC 562- House of Lords

Lord Atkin- Introduced Neighbor Principle
Also called the snail and the ginger beer case
X bought beer from the retailer
X gave it to friend Y
Y drank and fell sick because of the snail inside the beer
 TORT BREACH OF TRUST

Tort is a civil wrong. Civil proceedings shall Breach of trust is a criminal offence. And
be instituted. are liable for imprisonment/fine.

It is not codified law It is codified law

Motive is irrelevant Motive is relevant

Law of Tort in its origin is part of common Breach of Trust exclusively fell within the
law. jurisdiction of equity.

The plaintiff and defendant may or may not Both the plaintiff and the defendant must
know each other before a tortuous act. know each other

Legal remedy is unliquidated damages Injunction, specific restitution of property,

liquidated damages, imprisonment/ fine.
ILLUSnTRATION:
A, residing in calcutta, is agent for Z, residing at Delhi. There
is a express or implied contract between A & Z, that all sums
remitted by Z to A shall be invested by A, according to Z’s
direction.
Z remits a lakh of rupees to A, with direction to A to invest the
Same in the companies paper. A dishonestly disobeys the
direction and uses the money in his own business. A has
committed criminal breach of trust.
But if A, not dishonestly but in good faith, believing that it will
be more for Z’s advantage to hold share in Bank of Bengal,
disobeys Z’s direction, and buys share in Bank of Bengal, for Z,
instead of buying companies paper, Z suffer loss. Since, A not
acted dishonestly, Z can initiate civil action against him.
CHAPTER III

FOUNDATION OF TORTIOUS
LIABLITY
Two Competing Theories
a) Winfield- Law of Tort
b) Salmond- Law of Torts (Pigeon Hole Theory)
Winfield- Law of Tort- Wider
(i) All injuries done by one person to another are torts,
unless justification recognized by Law
(ii) There is definite number of torts, outside which
there exists no tortious liability
Derived: Unjustified harm is a tort
Way to new torts- Strict Liability, Negligence, Ginger
•Based on saying ‘my duty is to hurt nobody by word or
deed’
•Honest vivere- Lead life without any crime and scandal
•Alterum non leadere- hurt nobody & be true and just in
dealings
•Supported by Pollock
•Lord Macmillan- ‘Categories of negligence are never
closed’
Victoria Pack Racing and Recreation Grounds Co. Ltd v.
Taylor (1937) 58 CLR 479- High Court of Australia
Plaintiff- Racecourse; Defendant- erected tower on his
Salmond- Law of TORTS- Pigeon Hole Theory- Narrower
“There are a neat set of pigeon holes, each containing a
labeled tort. If the defendant’s wrong does not fit in the
pigeon holes, no tort is committed”
oIf alleged act does not fall within the definite set of
torts, it is not to be imposed on the defendant to prove
justification
oNo general liability lies- adverse party to prove
oAdhered to the concept of damnum sine injuria
damnum sine injuria- damage without
injury
Conclusion
•Even though no general principle, law is moving to f ind
one
•One should adopt both and follow a mid way
•Fair balance b/w compensation and freedom of action
has to be achieved
Three Essential Conditions
a) An act or omission on the part of the defendant
b) Intention or negligence or breach of strict duty by
defendant
c) Negligence resulting in damage to the plaintiff which
is not too remote a consequence of defendant’s
conduct
1) Act or Omission
•Act- any event that can be controlled by human will
•Can be positive/ negative and can be
commission/omission
•Withholding information-Negative act (Omission)
•Liability comes with every commission and omission
Eg 1: Principal appointed agent for information. Agent
has not provided the requisite information. Agent liable
for omission
Eg 2: Owner of a motor vehicle has no insurance for the
car- omission of a statutory duty
Can a man sitting on the sea shore watch the child
drowning?
Man-
Can a No liability
father sittingand
on no
theobligation to prove
sea shore watch theas a good
child
being
drowning?
2) Intention
• Guilt in the mind of the defendant
•F u l l a d v e r t e n c e r e l a t i n g t o t h e c o n d u c t a n d
consequences
•Law claims the defendant responsible for all intended
na t ura l a nd a l l o t he r sub se q ue nt a nd p ro b a b l e
consequences
Eg 1: Throwing a stone upon a person
Eg 2: Gun is f ired at a dog to scare the dog. Bullets hit
the dog and the dog is injured. No claim that the
intention was only to scare the dog would be allowed in
3) Negligence
• Two meanings in modern law of torts
a) Independent Specif ic Tort b) State of mind- mode to
do act
Eg: Careless and negligent driving of car in public road
Newspaper article with defamatory statement
• Negligenc e- Carelessness. No desire for
consequences
Diff b/w Negligence & Wrongful Intention: Consequence
Test
Negligence and Inadvertence
Damage and Damages
 Damage: Injury/Loss/Deprivation
 Damages: Compensation for injury awarded by Court
Injury- Actionable wrong
Damage- Loss or harm, may or may not be actionable
Damnum sine injuria (Damage without injury)
Acts which are harmful but are without any remedy
Any damage without breach of legal right- Not a tort
If there is a lawful justification- No tort
Act or omission with no legal harm- No tort
Mogul Steamship Co. v. McGregor, Gow and Co 1892 AC
25
Defendant Co- wished to monopolize china tea trade
Defendant co offered reduced freight to induce
shippers
Plaintiff was excluded from the combination and
suffered the loss
Hence brought a suit of conspiracy and also alleged
that there was threat against its customers
Held: House of Lords- No cause of action.
Association was formed for self protection and not to
Glouscester Grammar School Master Case (1410) YB II
Hen IV, Fo 47 PL 21- Opening of a new school against an
already existing school is a damage without any injury
Cope v Sharpe (1912) 1 KB 496
• Entering one’s premises to save goods from the
spreading fire
•No damages for injuries- too trivial, too indefinite, too
difficult to prove or for an act done in expediency
Town Area Committee v Prabhu Dayal AIR 1975 All 132
• Demolition of construction protruding on road without
notice
Injuria sine damno (Injury without damage)
In some cases, even without a damage, tort action can
be taken
Ashby v. White (1703) 2 Lord Raym 938, Lord Holt CJ
• Plaintiff was wrongfully prevented from voting by
defendants
• The candidate to whom the plaintiff wanted to vote,
won
• In a suit for damages, compensation was awarded
since there was an infringement of a legal right
Constantine v. Imperial London Hotels 1944 KB 693
Conclusion:
•Hence tort can be divided into two categories
a) Those actionable per se- actionable at the mere sight.
Without any injury. Eg: Trespass or unauthorized entry
• One will be held for the act itself
b) Those actionable only on the proof of actual damage
Eg: A negligent driving is not an offence by itself.
Howev e r ne g l i g e nc e c ausi ng i nj ury woul d b e
actionable
• One will be held only when the consequences cause
harm
Malice
•All act has immediate intent (object)& ulterior motive
(purpose)
•Eg: Thief stealing the money to feed starving children
• Law is concerned about intent and not the purpose
•Question- What did he do? Not why did he do?
Meaning of Malice
•Spite and Ill-will, Bad motive to cause evil to another
a) Intentional doing of a wrongful act without just cause
or excuse
b) An action determined by improper motive
 Malice in common- Ill-will against a person
 Ma l i c e i n L a w - A c t d o ne w ro ng f ul l y w i t h no
reasonable and probable cause
Mayor of Bradford v. Pickles 1895 AC 587- House of
Lords
• Pickles offered his land to corporation for setting up
scheme of water supply, which corporation refused to
buy
• Annoyed Pickles, started to sank shaft and pollute
water
• Corporation sued for injunction & contended evil
t of
Allen v Flood 1898 AC 1
• Plaintiffs- Two shipwrights employed by X to do
on
woodwork
und
• X had already appointed some iron workers
• Iron workers and wood workers had some previous
issue, for which the iron worker union leader, Allen
requested the discharge of wood workers
• X having the right to dismiss under the contract of
employment, did so accordingly
• Wood workers sued Allen for malice and bad intention
• Held Allen did no unlawful act & malice is not ground
Criticism
•Prof. Gutteridge- It is an hinterland to the law of torts to
allow vengeance and spitefulness to reign supreme
•In the current trend, even private wrongs brought under
the purview of crime
•Malice though not normally recognized, recently
exceptions are brought out
a) Defamation b) Malicious Prosecution c) Nuisance d)
Evil motive that may aggravate damages e) Conspiracy f)
Unlawful interference in other’s lawful activities g)
Injurious falsehood, slander of goods
Impact of Insurance on Tort:
•Present era- Idea of shifting and distribution of losses
• To shift and lessen the burden- Insurance
• Loss not to be borne only by those capable of paying but also to
those interested in bearing the loss
• Minimize litigation and agreed to compromise b/w parties
• Gave rise to new horizon and another branch of practice
• Personal injury litigation- major tort claim- 70% cases
• This popular form gave rise to various acts
• Tort law- not only with cash but also appeasement, justice and

fairness. Alternative remedy is a welcome note.

Blameworthiness and Civil Responsibility
• Salmond- Liability based on fault (Fault Liability)
• But fault is no more a condition precedent to be liable
Eg: Rylands v. Fletcher 1868 LR 3 HL 330- Blackburn J