Introduction:

A tort is an act or omission that gives rise to injury or harm to another and amounts to
a civil wrong for which courts impose liability. In the context of torts, "injury"
describes the invasion of any legal right, whereas "harm"
describes a loss or detriment in fact that an individual suffers. Tort denotes any wrongful act
which causes injury to any other person. It is based upon English Law of Tort. The law of
tort is an uncodified law.

The word ‘Tort’ is derived from the Latin word ‘Tortum’ which means ‘twisted’ or ‘crooked’
act. The term “tort” is nowadays used to denote a civil wrong independent of contract, for
which compensation in damages is recoverable. In its most general sense, “tort” is a wrong.
The basic aim of the law of tort is to shift the losses from the person affected to the person
who caused the loss. The purpose of the law of torts is to adjust these losses and to afford
compensation for injuries sustained by one person as a result of the conduct of another.

The Definition of Tort:

While no specific definition of tort has been possible which could be unanimously agreed by
all the thinkers, certain attempts to define tort have been made. Those are discuss below:

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

Winfield defines torts as “Tortious liability arises from the 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”
According to Pollock “Tort is an act or omission not merely the breach of a duty arising
out of personal relations, or undertaken by a contract which is related to harm suffered by a
determinate person, giving rise to a civil remedy which is not an action of contract.

Nature of Tort:
From the above-mentioned definitions, we can conclude about the nature of the tort that tort is a civil
wrong, and every civil wrong is not a tort. The “civil wrong” in question must be an act which the law
regards as wrongful. Here we are not talking about a moral or social wrong. Tort law is specifically
talking about a wrong that the law regards as unlawful.

Thus, it may be observed that:

 A tort is a civil wrong;
 Such civil wrong is other than a mere breach of contract or breach of trust.

 Such wrong is redressible by an action for unliquidated damage

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Tort is a Civil Wrong:
A fundamental characteristic of tort is that it is a civil wrong. Tortious liability does not cover criminal
wrongs. However, a particular wrong may be covered by both civil and criminal laws. The very
basic nature of criminal and civil wrong is distinct from each other. In the case of a civil wrong,
it is the injured party that institutes civil proceedings against the wrongdoer. While on the other
hand, the criminal proceedings against the accused are brought by the State. Moreover, in a
criminal wrong, the victim of the crime is not compensated monetarily. Justice is administered
by punishing the wrongdoer in the form of incarceration.

A Tort is a Civil Wrong Other than a mere breach of contract or a breach of trust.
Further, a tort is a civil wrong which is not exclusively any other kind of civil wrong. If a
wrong is covered under any other kind of civil wrong, say a breach of contract or breach of
trust, then it would not be considered to be a tort. The best way to go about finding whether a
wrong is a tort or not is through the process of elimination. First, we have to see whether the
wrong is civil or criminal; if it is a civil wrong, it has to be further seen if it exclusively belongs
to another recognized category of civil wrongs, like a breach of contract or breach of trust. If it
is found that it is neither a mere breach of contract nor any other civil wrong, then we can say
that the wrong is a “tort”.

However, it may be noted that there is a possibility that the same act may amount to two or
more civil wrongs, one of which may be a tort. For example, if A delivers his luxurious car to B
for safe custody for a week and B allows the car to be used by other people who were obviously
not authorized by A in the first place, B’s act amounts to two wrongs— the breach of contract
of bailment and the commission of tort of negligence.
Since both the wrongs are civil wrongs and damages are the main remedy for any kind of civil
wrong, the plaintiff can claim damages either under the law of torts for negligence or for the
breach of contract of bailment. But he cannot claim damages twice.

A Tort is Redressible by an Action for Unliquidated Damages

The affected party under the law of tort can claim unliquidated damages. It is this point of
unliquidated damages that helps in distinguishing a tort from a breach of contract or trust,
where the damages may be liquidated.

Distinction between Tort and Crime.

i) Tort is infringement of a private right or civil right of an individual i.e. it is a private

wrong or harm affecting the interest of private individual.

On the other hand Crime is a breach of invasion of public rights and

duties or invasion of public rights and duties affecting the society at large e.g. it is a social
harm.

ii) In Torts, intention is immaterial to hold a person responsible for civil wrong
i.e mens rea (guilty mind) is not required.

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 On the other hand in crime, intention is important.
Without mens rea there is hardly any crime to hold a person responsible for a crime
Usually mens rea i.e. guilty mind or mental element is necessary.

iii) The purpose of law of torts is compensate the victim i.e. The wrongdoer has to
compensate the injured party.

In crime the purpose is to punish the offender. The offender is

punished by the state in the interest of the society and with the aim to deter the offender
from committing it again.

iv) The parties in a civil suit for tort are individuals i.e. Individual v/s
Individual.
In case of crime the state is always a party, as the state takes an action
against the wrongdoer as crime is a public wrong. Therefore, it is State v/s Individual.

v) The yardstick for measuring liability in torts is the magnitude of harm caused. The greater
the harm, greater is a the amount of compensation awarded/ to be paid.

In crime, while deciding the punishment to be given to the offender three

factors are taken into accounts.

a) The character of offender, his past record , whether he has committed the offense for
the first time or is he a repeater

b) Motive of Wrongdoer.

c) Magnitude of harm caused

iv) In torts action is brought by an injured party and the tortfeasor is sued in a civil court.

In crime, the proceedings are conducted in the name of the state and the
guilty person is punished by the state. The guilty person i.e. criminal is prosecuted in a
criminal court.

Distinguish between Tort and Breach of Contract:

i) A Tort is a civil wrong in which remedy is action for damages.

Whereas breach of contract is a breaching or breaking of a promise which he
has do in the agreement of an contract.
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ii) Tort is a violation of legal right.
Whereas Breach of contract is an infringement of a legal right

iii) Damages in tort are always unliquidated.

Whereas in breach of contract the damages is liquidated

iv) In breach of contract the motive will be irrelevant and immaterial.

Whereas in tort motive may be taken into consideration.

v) In tort duty is bound towards the person in general.

Whereas in breach of contract the duty is bound towards a specific person or persons.

vi) In breach of contract nature of damages is compensatory

Whereas in tort the damages may be compensatory or even exemplary
damages may also be awarded.

Difference between Tort and Breach of Trust:

i) Tort is a civil wrong. Civil proceedings shall be instituted.

Breach of Trust and other equitable obligations are criminal offences,

and are liable for punishment with imprisonment, or fine or both.

ii) In Tort Motive is irrelevant.

Whereas in breach of trust Motive is relevant.

iii) The law of torts in its origin is a part of the common law.

Whereas Breach of Trust and other obligations fell exclusively within the
jurisdiction of equity.

iv) The plaintiff and the defendant may or may not know each other previous to the
incidence of tortious liability.

Whereas the plaintiff and the defendant know each other from the beginning.
In fact the law of the trust is depended upon the trust on each other.

v) The legal remedy for a tortious liability is unliquidated damages.

On the other hand Injunctions, specific restitution of property, and

the payment of liquidated sums of money by way of penalty, etc. are legal remedies

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available to the plaintiff. Besides them, the defendant is also liable for fine or imprisonment
or both under” the criminal proceedings.

Essential conditions of Liability in Tort:

To constitute tort following elements are essential:
i) Wrongful act committed by defendant.

ii) This wrongful act must have resulted in legal damage of plaintiff, i.e. injury to legal
right of plaintiff.

iii) There is legal remedy in the form of an action unliquidated damages.

i) Wrongful act or omission -

In order to make person liable for tort, he must have done an act which he was
not expected to do, or he must have omitted to do something which he was supposed to do.
Wrongful act is an act which is contrary to the provisions of law thereby causing injury to
the legal rights of another ,e.g. A commits the act of trespass is liable for trespass, or
publishes a statement defaming another person is liable for defamation or wrongfully
detains another person is liable for false imprisonment .

Similarly when there is a legal duty to do some act and person fails to perform that duty,he
can be make liable for such omission.

The wrongful act or wrongful omission must be recognized by law. Therefore a mere
social or moral wrong is not enforceable, e.g. if somebody fails to help a starving man or
save a drowning child is only a moral wrong hence not liable.

Cases -

Glasgow coronary V. Taylor, 1992

In this case a corporation fails to put proper fencing to keep the Children away from a
poisonous tree and a child plucks and eat the fruits orchestra the poisonous tree and dies,
the corporation was held liable for such omission.

General cleaning corporation Ltd V. Christmas 1953

In this case employer failed to provide a safety belt for safe system of work
liable for consequence of such omission.

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ii) Legal damage : Infringement of legal right:

A plaintiff has to prove that there has been a legal damage caused to him i,e an injury to
the legal right of the plaintiff. Thus plaintiff has to prove that there was a wrongful act or
omission on the part of defendant, causing thereby breach of legal duty or violation of
legal right of the plaintiff vested in him and recognized by law.

This provision can be explain by the following maxims….

Damnum sine injuria:

Damnum means = Damage in the sense of money, Loss of comfort , service , health etc.

Sine means = Without

Injuria means = Infringement of a legal right / injury to legal right.

It is a Latin legal maxim which basically means damage without injury. It
means an actual loss which occurs without the infringement of any legal rights.

Case laws:

Gloucester Grammar school case, 1410 (setting up rival school)

Defendant was school teacher in plaintiff's school. Because of some dispute
defendant left plaintiff's school and started his own school. As defendant was very famous
amongst students and students like his teaching, therefore boys from plaintiffs school left
and joined to defendant school. Plaintiff sued defendant for monetary loss caused.

Defendant was not liable. Compensation is no ground of action even

though monetary loss is caused if no legal right is violated of anybody.

Injuria sine damno-

Let's see meaning of maxim 'injuria sine damno'

1) Injuria - injury to legal right

2) sine –without
3) damno – damage

Injuria sine damno means violation of legal right without causing any harm, loss or
damage to the plaintiff. This is actionable, because there is violation of legal right, even
though plaintiff suffer no loss in term of money and defendant is liable.
In simple words, Injuria sine damno means Injury without damage or it means infringement

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of an absolute private right without any actual loss or damage. Whenever there is an invasion
of legal right, the person in whom the right is vested is entitled to bring an action and may
recover damages, although he has suffered no actual harm. In such case, the person need not
prove the actual damage caused to him. Example Trespass to land or property.

Suppose 'A' enter a private compound without permission of the owner here the
moment 'A' step in, A’s compound commit trespass and action can lie against 'A' even no
actual damage is caused.

1) Ashby v/s White, 1703.

Plaintiff was legal voter, his name was there in voter list ,defendant was a returning
officer, i.e. incharge of election. Defendant wrongfully refused to take the plaintiff’s vote .
Plaintiff sued defendant for compensation even though no loss is caused in term of money.

The plaintiff suffered no loss in money. Moreover, the candidate to whom he

was about to offer /tender his vote got elected.

Court held that defendant is liable to pay compensation because he has

violated legal right of plaintiff to vote. Even though plaintiff suffered no actual loss in term
of money, or the candidate to whom plaintiff was interested got elected, defendant has
committed a tort and therefore liable to pay compensation.

Therefore, there can be no action under the law of tort unless there has been
violation of legal right of plaintiff. Hence violation of legal right is actionable. it is
immaterial whether plaintiff suffered by any loss in terms of money or not.

iii) Legal remedy -

The wrongful act of the defendant must come under category of wrongs for which
the remedy is civil action for damages. The essential remedy for tort is an action for damages
but there are other remedies also, e.g. injunction obtained in addition to damages in certain
cases of wrong. The law of tort is said to be a development of maxim "ubi jus ibi remedium"
that there is no wrong without a remedy. If a man has a right he must of necessity have a
means to vindicte and maintain it and a remedy it it is injured in exercise or enjoyment of it.
It is in vain to imagine right without remedy.

Thus where there is no legal remedy, there is no legal wrong. If out of above three
elements ,any element is absent or missing, then there is no tort. Wrongful act and legal
damages goes hand in hand. Legal damage means violation or infringement of legal right.

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