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
Indi
1065 conquered, Englan a
Franc Spoken d/
e language in the
Courts in British
England
 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

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.
CHANGING SCOPE OF LAW OF TORTS
 CHANGING SCOPE OF LAW OF TORTS – FAULT / LIABILITY WITHOUT FAULT

• According to Salmond fault is the basic of all tortious liability.

• Liability for tort generally depends upon something done by a man which
can be regarded as a fault for the reason that it violates another man’s
right.
• But liability may also arise without fault. Such liability is known as
absolute or strict liability.
• RYLANDS V. FLETCHER (1868) LR 3 HL 330
The defendants employed independent contractors to construct a reservoir
on their land. The contractors found disused mines when digging but failed
to seal them properly. They filled the reservoir with water. As a result,
water flooded through the mineshafts into the plaintiff’s mines on the
adjoining property. The plaintiff secured a verdict at Liverpool Assizes. The
Court of Exchequer Chamber held the defendant liable and the House of
Lords affirmed their decision.
 CHANGING SCOPE OF LAW OF TORTS – MOTIVE

• A motive is a person’s state of mind that inspires him to do an act. It

usually means the purpose of the act’s commission.
• Motive is generally irrelevant in tort law.
• Motive leads to intention formation, which is the ultimate cause.
Motive is the ultimate object with which an act is done, while the
immediate purpose is the intention.
• The cause that moves individuals to induce a certain action is a
motive, in law, especially criminal law. Typically, the legal system
allows motive to be proven to make plausible reasons for committing a
crime for the accused. However, motive is not essential for a tort
action to be maintained. It is not just because the motive is good that
a wrongful act becomes legal.
 CHANGING SCOPE OF LAW OF TORTS – MOTIVE

• BRADFORD CORPORATION V. PICKLES [1895] AC 587

Lord Halsbury L.C. :
It’s not a case where the state of mind of the person doing the act can
affect the right to do it. If it was a lawful act, however ill the motive
might be, he had a right to do it. Motives and intentions in such a
question as is now before your lordships seem to me to be absolutely
irrelevant.

Lord Watson:
No use of property, which would be legal if due to a proper motive, can
become illegal because it is prompted by a motive that is improper or
even malicious.
 CHANGING SCOPE OF LAW OF TORTS – WRONGFUL INTENT

• According to Salmond intention means the object or purpose for which the
act is done.
• In case of Intention, the wrongdoer has full knowledge of the consequences
of his act, which he wants to achieve.
• It is difficult to know the intention with which the act is done. It is a state of
mind. So intention can be determined by the conduct of the person who does
an act.
• POSITION OF INTENTION IN TORT
Intention is irrelevant in law of tort. If a person is injured by the act of the
defendant then he will be liable, even though his intension might not be to
cause injury to the person.
In law of Torts, the liability is determined on the ground that every person
knows the natural consequences of his act.
• WILKINSON V DOWNTON [1897] 2 QB 57 – UNINTENTIONAL TORT
 CHANGING SCOPE OF LAW OF TORTS – WRONGFUL INTENT

• Depending on the intention, a tort can be divided into two broad categories
namely :

1. INTENTIONAL TORT : Some action must be taken with a purpose to commit

an intentional tort, i.e. an intention is must to commit an act. It is essential that
there is a mental element. (Battery, Assault, False Imprisonment, Trespass)

2. UNINTENTIONAL TORT : The defendant causes injury to the plaintiff in the

case of unintentional torture, but without any mala fide intention. It could be
called an unexpected accident. This was inadvertently done by the person who
caused the injury because he/she was not being careful. Such an individual may
be described as negligent or reckless. In the case of unintentional tort, it may
be noted that the injury is caused by the omission of the “duty of care” that a
reasonable and prudent man should have considered.