LAW OF TORTS

MEANING OF THE WORD TORT

◈ The word 'Tort' is derived from the Latin word 'Tortum' which means 'twisted' or 'crooked’ or
‘unlawful’ or ‘conduct which is not straight or lawful’

◈ Tort is a civil “Wrong”

◈ That Wrong is based on the “duty imposed by the law”

◈ That breach gives rise to civil right of action and the remedy is “Unliquidated Damages”

◈ The Law of Tort is uncodified.

 Definition of Tort
◈ Salmond - Tort is civil wrong, for which the remedy is common law action for unliquidated
damages and which is not exclusively the breach of contract or breach of trust or other merely
equitable obligation.

◈ Winfield - Tortious liability arises from breach of duty primarily fixed by law, this duty is
towards persons generally and its breach is redressable by an action for unliquidated damages.

◈ Burdick - An act or omission which unlawfully violates a persons right created by law and for
which appropriate remedy is a common law action for damages by the injured person.

◈ Sec. 2(m) of Limitation Act 1963 defines “Tort means a civil wrong which is not exclusively a
breach of contract or trust”
 Characteristics of Tort
1. It is a civil wrong.

2. It arises from breach of duty.

3. It is different from the breach of contract and breach of trust.

4. It is different than a criminal wrong.

5. It is remedied by unliquidated damages.

 Objects of Law of Torts
1. Afford compensation.

2. Shifting of loss to person who caused it or to the beneficiary.

3. To protect the interests and rights of a person like, property, person and reputation.

4. To provide appropriate remedy for violation of rights.

 Evolution of Law of Torts in England and in India

ENGLAND
• Before Norman Conquest (AD 1066) – Primitive and Rudimentry
• Payment of Pecuniary Compensation and Private Composition of Serious offense
• After Norman Conquest Henry II – Instead of composition of private wrong, courts were established
• During 13th Century “Writ of Tresspass” or “Action” was Introduced – Success of Writ depend on the
availability of writ dealt in Common law courts and other cases in local and manorial courts
 ACTION

Action of Trespass Action for

Trespass
(Indirect Injury or Cnsenquential
Injury) (Direct Injury)

Eg. Defamation, Nuisance, Deceit,

Malicious
Prosecution
In ASHBY V. WHITE (1702)
Returning officer prosecuted maliciously prevented from exercising voting rights – The candiate who he
wanted to Vote nevertheless won the election – Defendant argued that he has not sustained any actual or
pecuniary damage.
HOLT CJ – If the plaintiff has right there must be a necessity means to vindicate and maintain it and remedy
if he is injured while exercising such right or enjoying.
UBI JUS IBI REMEDIUM – When there is a Right there is a Remedy

In NOCTON V. ASHBURTUN (1914)

Lord Dunedin – There is no harder lesson for stranger jurist to learn that common law began with remedy
and ended with right.
NOVELTY IS NO BAR TO JURISDICTION
Evolution of Law of Torts in India
• Law of Torts in India is based on Law of Torts in England and Departure will be made if any
particular rule was found unreasonable or unsuitable to Indian conditions.

• In M.C Mehta v. Union of India (1987)

Justice P.N Bhagwati said that “We cannot allow our judicial thinking to be conscripted by
reference to the law: that prevailed in England or for the matter of that in any foreign country.
We no longer need the crutches of a foreign legal order. We are certainly prepared to receive
light from whatever sources as comes but we have to build up our own jurisprudence and we
cannot countenance an argument that merely because the new law does not recognize the rule
of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down
in Rylands v. Flecher as is developed in England recognises certain limitations and
responsibilities. We in India cannot hold our hands back, and I venture to evolve a new principle
of liability which English courts have not done.”

• Indian Courts done very little development for law of torts. In “Memorandum of law” in
opposition to
Union carbide corporation v. Union of India, the UOI has admitted the pathetic and deplorable
state of law of torts in India
• In Jay Laxmi lal works v. State of Gujarat (1994)
If the construction of bundh(Dam) is a common law or public duty, then any loss or damage
arise out of it gives rise to tortious liability. A common man cannot be left high and dry
because wrong doer is state and the basic element of tort is duty.

• India took no steps no codify it but has incorporated some parts of law of torts in Specific
relief Act, Fatal Accidents Act, Employee liability Act, Motor Vehicles Act.
 Elements of Torts
1. Wrongful Act or Omission
The act complained must be legally wrongful act. An act will be 'wrongful' when it affect
someone's legal right. A legal right is created by law and is enforceable. Legal rights are
numerous and it is still growing. Wrongful act include - act or omission.
2. Legal damage
It means 'injury in the eye of law’. Legal injury/damage need not to be identical, actual or
pecuniary. There must be infringement of legal right of a person. Such infringement of a
legal right has a presumption of injury in the eye of law. There is no need of actual damage.
3. Legal remedy
The wrongful act complained must be such that it may give rise to a legal remedy in the form
of an action for damages. The important remedy to constitute 'tort' is damages. There may be
other remedies along with damages like; injunction, declaration, specific performance,
restoration, etc.
TORT V CRIME – DISTINGUISHED

1. Tort - Civil wrong – Civil Proceedings

Crime - More serious – Criminal Proceedings

2. Tort – Uncodified law

Crime – Codified law

3. Torts is a private wrong – injured party to file a suit as plaintiff

Crime is Public wrong – Criminal proceeding to be brought by the State

4. Torts – Ends of justice is served by awarding compensation to the injured party

Crime – Punishment is served to prevent it from happening in the society

5. Torts – Compromise can be done at any stages

Crime – No place for settlement except at some circumstances

6. Torts – Remedy is Unliquidated damages

Crime – Imprisonment/Fine/both.

7. Tort – Intention generally not relevant

Crime – Intention is relevant
TORT AND BREACH OF CONTRACT

1. Tort – Breach of duty imposed by law

Breach of Contract – Breach of duty undertaken by the party

2. Tort – Right in rem i.e Right vested in some particular individual and available against the public at
large
Breach of Contract– Right in personam i.e Right available agains some particular person or party

3. Tort – Privity of contract is allowed to wrongdoer for the tort committed by him, although there was
no contract between the person causing injury and person injured
Breach of Contract– Privity of contract is not allowed.

4. Type of Damages in Tort – unliquidated

Type of Damages in Breach of Contract – liquidated
TORT AND BREACH OF TRUST

1. Tort – Damages is unliquidated

Breach of Trust - In case of breach of trust by the trustee, the beneficiary can claim compensation
for the loss that trust property has suffered – liquidated

2. Tort – Common law Court

Breach of Trust – Redressable in the court of chancery.

TORT AND QUASI-CONTRACT

1. Tort - Damages are not fixed in the tort law i.e., also known as unliquidated damages.
Quasi – Contract - Damages are not fixed in the Quasi-contrat i.e., also known as liquidated
damages.

2. Tort - Duty is imposed toward all people generally and not to a definite person.
Quasi-contract - Duty is towards a definite person from whom the person has enriched wrongful
benefits.
 LAW OF TORT V. LAW OF TORTS

Law of Torts – Consisting of only a number if specific wrongs beyond which the liability under this branch
of law does not arise
(OR)
Law of Tort – Every wrongful act, for which there is no justification or excuse to be treated as tort.

Winfield preferred the law of tort he says that “If I injure my neighbor, he can sue me in tort whether the
wrong happens to a particular name like assault, battery, deceit, slander, or whether it has no special title
at all and I shall be liable if I cannot prove lawful justification

Salmond on the other hand preferred the law of torts – the liability under this branch of law arises only
when the wrong is covered by anyone or the other nominated torts. There is no general principle of
liability and if the plaintiff can place this wrong in any one of the pigeon holes each containing a labelled
tort he will succeed this theory is known as pigeonhole theory. if there is no pigeonhole in which plaintiff
case could fit in the defendant committed no tort.

According to Salmond, “Just as the criminal law consists of a body of rules establishing specific offence, 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. Whether I am prosecuted for an alleged offence or sued
for an alleged tort, it is for my adversary to prove that the case falls within some specific and established
rule of liability and not for me to defend my self by proving that it is within some specific and established
rule of justification or excuse.”
In 1702 – ASHBY V. WHITE supported the law of tort – UBI JUS IBI REMEDIUM and in 1762 Pratt CJ “ Tort
are infinitely various and it should not be limited or confined”. This theory is supported by creation of new
torts by the court of law for instance the tort of deceit in Pasley v Freeman and Rule of strict liability in
Ryland V. Fletcher and Tort of intimidation in Rookes v Barnard.

[Link] favoured salmond theory. He was however after view, that salmond’s theory does not imply that
the courts are incapable of creating a new tort According to him the court can create a new tort but such
torts cannot be created unless they are substantially similar to those which are already in existence.

In Jay Lakshmi Salt works V. The State of Gujarat (1994) it was observed that :
Law of torts being a developing law, its frontiers are incapable of being strictly barricaded

Winfield made a modification in his stand regarding his own theory. He now thought that both his and
salond thories were correct, the Winfield theory from a broader point of view and other from a narrower
point of view. In the words of Winfield, From a narrower and practical point of view, the second will suffice
but from a broader outlook, the first is valid. If we concentrate attention on law of tort at the moment
entirely excluding the development of the law, past and future then it corresponds to second theory. If we
take wider view that the law of tort has grown for centuries and still growing then the first theory seems to
be at back of it.
 LEGAL MAXIMS IN DETERMINING TORTIOUS LIABILITY

INJURIA SINE DAMNUM

• Injuria sine damno", injuria means infringement of a right conferred by law on the plaintiff and damno
means substantial harm, loss or damage in respect of money, comfort, health etc So when there has
been violation of legal rights (injuria) but without causing any harm (damnum/ damno), the plantiff can
still go to the court of law because no violation of a legal rights should go unredressed Reciprocally,
when there is any harm without violation of legal rights it is not actionable per se. Thus, the test to
determine whether the defendant should or should not be liable is not depend on whether the plaintiff
has suffered any Loss or not, but the real test is whether any lawful rights vested in the plaintiff have
been violated or not
• ASHBY V. WHITE – Plaintiff is succeeded even though the defendant’s act did not cause any harm to
him.
• BHIM SINGH V. STATE OF J&K (1986) – An MLA – wrongly detained by police while going to attend
assembly session – Awarded compensation of Rs.50,000.
From these cases it is clear that the loss suffered by the plaintiff is not relevant for claiming compensation;
only the violation of a legal right is relevant.

DAMNUM SINE INJURIA

It means causing harm without violation of legal rights of others. causing damage to another person is not
actionable in law unless there is violation of legal rights of the plaintiff.

In GLOCUSTER GRAMMER SCHOOL CASE (1410)

In this case defendant is a schoolmaster who set up a rival school to that off plaintiff. Because of this, the
plaintiff has to reduce the fees from 40 pence to 20 pence per scholar per quarter. It was held that plaintiff
has no remedy for loss they suffered by him since here no legal right has been infringed here, so he is not
entitled for any legal compensation.

In TOWN AREA COMMITTEE V PRABHU DAYAL (1975), the plaintiff constructed 16 shop on the old
foundation of the building. The said construction was made without giving a notice to the municipality
and without obtaining proper sanction. The defendants, the municipality authorities demolished the
building for violation of the norms. The plaintiff argued that the action of the defendant was not well and it
was with malified intention. It was held that defendant was not liable as no injury can be proved because
the plaintiff constructed a building illegally and such demolition would not amounts to causing injury or to
the plaintiff
In MOGUL STEAMSHIP CO V. MC GREGOR GOW AND CO (1892)
A number of steamship companies combined together and drove the plaintiff company out of the tea
carrying grade by offering reduced freight. The House of Lords held that the plaintiff had no cause of
action as the defendant had by lawful means acted to protect and extend the trade and increase their
profits

In CHESMORE V RICHARDS (1859)

The plaintiff is a mill owner was for the past 60 years using the water for his milL from a stream which
was fed by the rainfall percolating through underground strata to the stream, but not flowing in a
defined channels. The defendant sunk a well on their land and pumped large quantity of water, which
would otherwise have gone to the plaintiff stream, thereby causing loss to the plaintiff. For this, the
defendant was held not liable.

UBI JUS IBI REMEDIUM

• It means that “Wherever there is a right, there is a remedy

• The main two ingredients of the doctrine are ‘jus’ and ‘remedium’. Where ‘jus’ means legal authority
to do or to demand something from and ‘remedium’ means right of action.
• This right to a remedy, includes more than the plain meaning of term ‘remedy’ in English law, as it
includes a right of action.
• The principle says that wherever there is breach of anyone’s right, the law gives him/her the remedy
to protect it or to recover the damages for any loss.
ESSENTIALS OF UBI JUS IBI REMEDIUM

• 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; if no legal injury has been caused then the maxim damnum sine
injuria will be used which means damage without any legal injury.

LIMITATIONS

• The maxim ubi jus ibi remedium does not apply to moral and political wrong which are not actionable.
• This maxim is not applied to those cases in which proper remedy is given in case of breach of right
under common law.
• If there is no legal damage which has been caused to any person then this maxim will not be
applicable.
• 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.
• This maxim is not applicable where the plaintiff is negligent or there is negligence on the part of the
plaintiff.
ASHBY V. WHITE (1702)
In Ashby v White a constable unlawfully prevented a qualified voter from casting his vote in an election.
Although the candidate which plaintiff supported won. The Court held that his voting right had been
violated. The Plaintiff was awarded compensation and affirmed that a right’s violation merits a remedy
irrespective of substantial damage.

D.K. BASU V. STATE OF WEST BENGAL (1986)

The Supreme Court in this case has acknowledged the custodial deaths & issued guidelines to safeguard
rights of detainees. The Court held that merely addressing wrongful acts was insufficient, appropriate
remedies including compensation, must be granted based on the severity of the infringement.
 CONCEPT OF MALICE IN TORT
1. MALICE IN LAW – a wrongful act done intentionally without just cause or excuse
2. MALICE IN FACT – Evil Motive behind a wrongful act
MALICE IN LAW
• Viscount Haldane described malice in law as, “A person who inflicts an injury upon another person
in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to
know the law, and he must act within the law”.
• In this context, malice in law simply means a wrongful intention, presumed in the case of an
unlawful act, rather than a bad motive or feeling of ill-will. For instance, in defamation cases, stating
that a publication was done "falsely and maliciously" means it is false and made without lawful
justification.
• A journalist publishes a false article claiming that a local politician is involved in embezzlement. The
journalist did not verify the claims and acted recklessly. This scenario exemplifies malice in law, as
the journalist's actions were inherently wrongful, damaging the politician's reputation without
justification.
• A homeowner, in anger, allows friends to vandalize a neighbor's property. The homeowner had no
valid reason to permit this. This illustrates malice in law, where the homeowner's lack of justification
MALICE IN FACT

• Malice in fact refers to an evil motive behind a wrongful act. When the defendant commits a wrongful
act with feelings of spite, vengeance, or ill-will, the act is said to be done 'maliciously’.
• It's crucial to distinguish this from intention, which pertains to the wrongful act itself. For example, the
immediate intention of a person might be to commit theft, while the underlying motive could be to
provide for their children or assist someone in need.
• How far is the motive of a person relevant in determining his liability in tort? – As a general rule, motive
is not relevant to determine a person’s liability in the law of tots. A wrongful act does not become lawful
merely because the motive is good. Similarly a lawful act does not become wrongful because of a bad
motive or malice.
South Wales Miners’ Federation v. Glamorgan Coal Company (1905)
This case illustrates that a wrongful act cannot be converted into a lawful one by a positive motive. Here,
the plaintiffs, coalmine owners, sued a miner’s union for inducing workmen to breach their employment
contracts by taking holidays, with the aim to maintain coal prices. Despite no ill-will involved, the House of
Lords held the defendants liable, highlighting that the act's legality isn't altered by its underlying
Bradford Corporation v. Pickles (1895)
This landmark case emphasises that a lawful act doesn't become unlawful due to an evil motive. In this case
the defendant made certain excavations over his own land as a result of which the water, which was flowing
in unknow and undefined channels from his land to the adjourning land of the corporation was discoloured
and diminished. It was done by the defendant with a motive to coerce the the plaintiffs into buying his land
at a high price. It was held by the house of lords that the defendant is not liable.
Town Area Committee v. Prabhu Dayal (1975)
The plaintiff constructed buildings without adhering to the U.P. Municipalities Act provisions, leading to
their demolition by the defendants. The plaintiff contended that the demolition was motivated by malice.
However, the Allahabad High Court ruled that the demolition of an illegally constructed building was
lawful, and the officers' motives were irrelevant.
Justice Hari Swaroop emphasised, "The plaintiff can get compensation only if he proves to have suffered
injury due to an illegal act of the defendant and not otherwise. Malice does not enter the scene at all.
A legal act, though motivated by malice, will not make the action liable to pay damages... Merely because
some officer has malice against a citizen who has committed a wrong will not render the action of the
authority invalid if it is otherwise in accordance with law."
EXCEPTION TO THE RULE – MALICE IN FACT
The following are the circumstances in which the malice in fact or evil motive becomes relevant in
determining liability in law of torts:
1. In torts of deceit, conspiracy, malicious prosecution and injurious falsehood – one of the essential
that has to be proved is malice in fact
2. In cases of defamation when qualified privilege or fair comment is pleaded as defense,malice in fact
becomes relevant.
3. Malice or evil motive may result in aggravation of damages
4. Causing personal discomfort by an unlawful motive may turn otherwise lawful act into nuisance.
5. When the act is otherwise unlawful and wrongful intention can be gathered from circumstance of the
case
In Balak Glass Emporium V. United India Insurance [Link] (1993), in a multi stored building the water
from the upper Storey under the control of defendant escaped to the lower floor occupied by the
plaintiff. There was evidence of ill will between the plaintiff and the defendant. It was found that not only
the tap of the upper floor was left fully open, but the outlet of the tank was also closed there was only one
inference that the said act was done by the defendant, with the wrongful intention, and hints, the
 CONCEPT OF FAULT AND NO-FAULT LIABILITY

“Fault” is a type of liability in which the plaintiff must prove that the defendant’s conduct was either
negligent or intentional; fault-based liability is the opposite of no-fault liability. In simple words any liability
on a defendant where it can be clearly shown and proved that because of his conduct, some harm has been
caused to the plaintiff then it is said to be fault liability
FAULT WHEN RELEVANT:
• In branches of law of thoughts like assault, battery, false imprisonment, deceit, malicious prosecution
under conspiracy, the state of mind of a person is relevant to ascertain his liability
• sometimes we may compare the conduct of the defendant with that of a reasonable man and make him
liable only if his conduct falls below the standard expected of a reasonable man
• When the circumstances demanded care and a person fails to perform the duty to take care he is liable
for the law of tort of negligence
• If the defendant has taken such care as we expected from him is not liable for the damages to the
plaintiff.
• Exception that can be claimed as a defense during when the mental intention is relevant – Necessity,
Inevitable accident, Act of god
In NATIONAL COAL BOARD V. J.E EVANS (1951), he has no reason to believe that there are electric wires
beneath his land and the same got damaged on making the excavation and he is not liable for the
damages to the wires.
FAULT WHEN NOT RELEVANT (LIABILITY WITHOUT FAULT):
• There are certain areas where the mental element is quite irrelevant and the liability arises even
without any wrongful intention or negligence on the part of defendant in such cases the innocence of
the defendant or mistake on his part is not a defence.
• The liabilities which can be included in this type of principle are:
• Strict Liability – In Ryland V. Fletcher, lay down the rule of strict liability. under the rule if a
person makes non natural use of his land by collecting there something which is likely to do
mischief by escape, he will be liable if the thing so collected escapes and causes the damage. In
such a case, it would be no difference to say that the defendant was not negligent in collecting the
thing or for its escape.
• Absolute Liability – In M.C Mehta V. UOI (1987), it was held that the enterprise must be held to be
under obligation to provide that its activities be conducted with the highest standards of safety and
if any harm results on account of such activity, the enterprise must be absolutely liable to
compensate for such harm and it should be no answer to the enterprise to say that it had taken all
reasonable care and that the harm occurred without any negligence on its part
• Vicarious Liability - the responsibility of the superior for the acts of their subordinate
• Tort of conversion – In Consolidated Co. V. Curtis (1892), it was held that an auctioneer who sells the
goods under an authority from the customer having no title to the goods is liable for conversion
even though at the time of actually believing that the customer was the true owner.
 PRINCIPLES OF INSURANCE IN TORTS

• Motor vehicle insurance liability primarily arises from the tort of negligence .
• Negligence principle : Every driver has a legal duty of care towards other road users. If they breach that
duty and cause damage, they are liable to compensate. In India, the Motor Vehicles Act, 1988 (and
amendments) works alongside tort law to ensure that victims of road accidents receive compensation.
• Principle of Fault Liability - Traditionally, liability for road accidents was based on proving negligence
or fault. The injured party must prove that the accident was caused by the defendant’s breach of duty
(e.g., reckless driving).
• Principle of No-Fault Liability - Introduced to speed up compensation for victims without requiring
proof of negligence. Section 140, Motor Vehicles Act 1988 : Provides for fixed compensation for death
Rs.50,000 or permanent disablement Rs.25,000, regardless of fault.
• Principle of Compulsory Third-Party Insurance - Section 146, Motor Vehicles Act : Every motor
vehicle must have insurance to cover third-party risks. This ensures that even if the wrongdoer has no
personal assets, the insurance company pays compensation to the victim. This is rooted in public policy
to protect accident victims.
 VIOLATION OF ETHICAL CODES

• In the law of torts, violation of ethical codes refers to situations where a person, especially a
professional, breaches the moral and professional standards expected in their field, and such a breach
causes harm to another. Ethical codes are not merely moral guidelines — they often form part of the
legal duty of care.
• For example: Doctors are bound by the Hippocratic Oath and the Medical Council of India’s Code of
Ethics, which require maintaining patient confidentiality, obtaining informed consent, and acting in
the patient’s best interest. Similarly, advocates are bound by the Advocates Act, 1961 and Bar Council
Rules to uphold client confidentiality, avoid conflicts of interest, and maintain dignity in court.
• When these ethical duties are violated and damage results, it may amount to a civil wrong
actionable in tort . For instance, if a doctor discloses a patient’s private medical history to outsiders
without consent, and this disclosure causes mental distress or reputational harm, the patient can sue
for damages. This principle is significant because it bridges the gap between mere moral wrongdoing
and legal liability ensuring that professionals who hold positions of trust are held accountable not just
for technical negligence, but also for unethical conduct that breaches the confidence society places in
them.