INTRODUCTION TO LAW OF TORTS

By: ~ Prashant Bhardwaj

The word ‘tort’ is a French origin and has been derived from the Latin word “tortum”
which means to twist and implies conduct which is tortious or twisted. The word tort
is equivalent of the English word “wrong” of the Roman word ‘delicit’.

DEFINITION OF TORT:

Academics have attempted to define the law of tort, but a glance at all the leading
text books on the subject will quickly reveal that it is extremely difficult to arrive at
a satisfactory, all-embracing definition. Each writer has a different formulation and
each states that the definition is unsatisfactory.

Winfield: “Tortious liability arises from a breach of a duty priority fixed by law;
this duty is towards persons generally and its breach is redressable by an action for
unliquidated damages”. This definition is more informative but is far from
perfection.

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.

Clerk & Lindsell: A tort may be described as wrong independent of contract for
which the appropriate remedy is common law action. Both these definitions failed
to explain what is wrong.

Fraser: “It is an infringement of right in rem of a private individual giving a right

of compensation at the suit of the injured party.” This definition also lacks some
perfection.

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 Sec. 2(m) of Indian Limitation Act, 1963: “Tort means a civil wrong which is not
exclusively a breach of contract or breach of trust.” This definition is good but it
fails to explain the civil wrong and its remedies.

The essential features of tort which appear from the above definitions are as follows: -

1. Tort is a civil wrong as it is a breach of duty.

2. The duty is one imposed by the state. It is not self-imposed as in contract. That is why
the definition makes it clear that the duty is one not arising out of contract.

3. The duty must be towards persons generally.

4. The remedy of a person aggrieved by a tort is that an unliquidated damages.

In order to understand the exact nature of tort, it is necessary to distinguish tort from other
branches of law, and in so doing to discover how the aims of torts differ from the aims of other
areas of law such as contract law and criminal law.

TORT AND CRIME:

1. A tort is an infringement of private or civil right of an individual. A crime is a breach

of public right and duties which affect the community as a whole.

2. The wrongs which are comparatively less serious are considered to be private wrongs
and have been labelled as wrongs where as more serious wrongs have been considered to be
public wrongs and are known as crimes.

3. In tort the action is instituted by the injured party. In Crime the proceedings are
conducted in the name of the state.

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4. The rules applicable in case of tort are generally different from those in the case of
crime. E.g. in the case of tort of defamation, truth is in itself a good defence but is an action for
the offence of defamation the defence of the truth can be taken if the publication was made for
public good.

5. Intention is important in tort but not in all cases e.g. Negligence. In crime intention is
the crux of the offence.

6. In tort an individual at his own cost and effort conducts a case but in criminal law the
public prosecutor at the cost of state conducts the proceedings.

7. The object of an action in tort is recovery of compensation. Whereas the object of

criminal law is to punish the offender.

8. In tort unliquidated damages can be recovered. But in criminal law it is not possible.

TORT AND CONTRACT (BREACH OF CONTRACT)

1. In tort duty is fixed by the law itself. In contract the duty is fixed by the parties
themselves.

2. In tort duty is towards every person of the community or society. In contract the duty
is towards specific person or persons.

3. Tort is a violation of a right in rem. It vindicates numerous types of interests like interest
in person (Assault, Battery) interest in property (trespass to land, nuisance etc.) Breach of
contract is violation of a right in personam. It vindicates only single interests.

4. A tort is committed against or without consent. A contract is based on consent.

5. In torts privity rule is out of place but in contract privity between parties must be proved.

6. In tort motive also taken into account but in contract motive is not relevant.

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7. In torts, gratuitous service if negligently performed invites an action. But in breach of
contract breach of a gratuitous undertaking is not actionable.

8. In tort damages recoverable are unliquidated and uncertain in amount. In contract

damages are compensatory and not punitive.

9. Tort law is concerned with losses. But contract law concerned with promises.

UBI JUS IBI REMEDIUM.

This maxim forms the very foundation of the law of torts. The maxim means where there is a
right there is a remedy. In other words, no wrong can remain without remedy. Jus signifies the
legal authority to do or to demand something and remedium is the right of action or the means
offered by law to assert the right or to recover something under it.

In Ashby V. White it was observed, if a person has a right, he must of necessity have a means
to vindicate and to maintain it, and a remedy if he is injured in the exercise or enjoyment of it,
and indeed it is a vain thing to imagine a right without a remedy; want of right and want of
remedy are reciprocal.

This maxim is ever-fresh and is like a livewire that keeps the law alive to the needs of society.

ESSENTIALS OF A TORT:

In order to constitute a tort, the following three conditions are to be satisfied:

1) There must be a wrongful act or omission on the part of the defendant:

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. E.g. ‘A’

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is under a duty not to trespass into “B’s property, ‘A’ trespassed into the B’s property, so A’s
act is a wrongful action, and B can claim compensation.

If ‘A’ is under a duty to provide fencing to keep the children away from a poisonous tree, but
he failed to do so, so a child plucked and ate the fruits and died. A is liable for his omission.
(Glasgow corps v.Taylor)

A municipal corporation is failed to keep the Clock Tower in proper repairs and resulted in the
falling of the same which resulted into death of number of persons. Corporation held liable for
its omission. (Municipal Corporation, Delhi v. Subhawanti)

The wrongful act or omission must be one recognized by law, if there is a mere moral wrong,
there cannot be a liability for the same.

Example: A failed to help a starving man, A failed to help a drowning child, in these cases
there is no liability arise.

2) The wrongful act or omission must cause legal damage to the plaintiff:

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 if there has been a violation of a legal right the same is actionable
whether as a consequence thereof the plaintiff has suffered any loss or not. This is expressed
by the maxim Injuria sine damnum.

INJURIA SINE DAMNUM:

Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized

interference, howsoever trivial with plaintiff’s right. Damnum means substantial harm, loss or
damage in respect of money, comfort, health or the like. This maxim means infringement of
private legal right without damage or loss. In such a case the persons whose right has been
infringed entitled to bring an action and may recover damage from the person who has violated

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his right. It means whenever there is an infringement of private legal right, the person in whom
the legal right is vested is entitled to bring an action and may recover damages, although he has
suffered no actual loss or harm.

The leading example of this maxim is Ashby v. White. In this case the defendant a returning
officer wrongfully refused to register a duty tendered vote of the plaintiff who has a qualified
voter. The candidate for whom the vote was tendered was elected and hence no loss was
suffered by the rejection of the plaintiff’s vote. The court awarded damages on the ground that
the violation of plaintiff’s legal right was an injury for which he must have a remedy and
actionable without proof of pecuniary damage.

In Bhim Singh v. State of J&K, the petitioner, an MLA of Jammu & Kashmir assembly was
wrongfully detained by the police while he was going to attend the assembly session. As a
consequence of this the member was deprived of his constitutional right to attend the assembly
session. The court awarded a sum of Rs. 50000/- as compensation.

DAMNUM SINE INJURIA:

This maxim means damage or loss without infringement of legal right. Thus, no action lies for
mere damage or loss, however substantial caused by an act which does not infringe some legal
right of the plaintiff.

This principle is well illustrated in Gloucester Grammar School case. In this case the
defendant had set up a rival school to that of the plaintiffs with the result that the plaintiffs were
required to reduce the tuition fees of their school substantially as the boys from the plaintiffs
school were running away to that the defendants school. It was held that the plaintiff had no
cause of action against the defendant because it was only a case of damnum sine injuria.

When an act or omission which has resulted in damage in lawful, that is when it has caused
damage to another in the mere exercise of a legal right, would an action lie in respect of it even

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though the act or omission may be deliberate and harm caused is malicious. This question
raised in Mayor of Bradford v. Pickles Case; the defendant had a piece of land which he offered
to the Bradford Corporation for sale. The offer was not accepted this infuriated the defendant.
The corporation was supplying water to a village by means of wells on its own land. The wells
were fed by an underground stream passing underneath the land of the defendant which was
on a higher level. The defendant began to dig deep on his own land. The underground water
was thus impounded by him on his own land and was prevented from reaching the corporation
well. The object of the defendant was to compel the corporation to buy his land at his own
price. The House of Lords held that since the defendant was exercising his lawful right, he
could not be made liable even though the defendant acted maliciously.

LEGAL REMEDY:

The last and final ingredient of a tort is that there must be a civil action available for damages
which is the main remedy. Other remedies such as injunction are additional only. Where the
damages are the secondary remedy, the wrong though civil in nature not a tort.

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