L A W OF TO RTS

PROJECT REPORT

PROJECT TOPIC:
NATURE AND DEFINITION OF TORTS

Submitted to : Submitted by:

Ms. Kriti Mansimrit singh

UILS B.Com LL.B
Section-F
Roll No. 359/22
INTRODUCTION

The Customary laws in India, like the Indian and Muslim laws from the ancient time,
did not give much emphasis on the Tort law and its development, they focused on the
criminal penalty for most wrongs and offences committed by people, and the minute matters
of civil nature did not call for damages because of the societal setup that existed.

The law of torts as administered in India in modern times is the English law as found
suitable to Indian conditions and as modified by the Acts of the Indian Legislature, its origin
is linked with the establishment of British Courts in India. The British Officials administering
these courts normally drew upon the common law and statute law of England as found
suitable to Indian conditions while deciding cases “according to justice and right”. This led to
introduction in these courts jurisdiction of the English common and statute law in force at the
time to be applicable to the Indian Circumstances, and Civil law structure.

The Tort law was adopted in India as it reflected the principles of equity, justice and
good conscience, The Indian courts, however, before applying any rule of English law can
see whether it is suited to the Indian society and circumstances. The application of the
English law in India as rules of justice, equity and good conscience has, therefore, been a
selective application.

The Tort law in India stays an un-codified Law which leaves a lot of room for it to be
interpreted on circumstantial basis, on basis of different statutes , precedents and cases.

The Conventional Indian Legal System however provided serious penalties to

offences of certain intensities and higher, it lacked the accountability on civil and
compensatory grounds, therefore, the development of Law of Torts gave rise to more
structured and definite liability in matters of Civil injuries. The progression of a more
economically and civically stable society called for a system that would compensate for the
monetary damages as well legal injuries that are caused to the aggrieved, therefore Tort law
proved to be very instrumental for the evolution of the outdated legal system driven by
customary laws. The Compensatory nature aided in civil vigilance and social responsibility to
prevent misconduct from the side of the citizens. The compensatory nature of Torts also
aided the victims to restore monetary losses caused as a result of the legal injury and uphold
their personal and public rights.

The word tort is derived from the Latin term tortum to twist, and implies conduct
which is twisted or tortuous. It now means a breach of some duty independent of contract
giving rise to a civil cause of act ion and for which compensation is recoverable. In spite of
various attempts an entirely satisfactory definition of tort still awaits.. To provide a workable
definition in general terms, a tort may be defined as a civil wrong independent of contract for
which the appropriate remedy is an action for unliquidated damages.

The person committing a tort or wrong is called a tort feasor or wrong doer, and his
misdoing is a tortuous act. The principal aim of the law of torts is compensation of victims or
their dependants.

The law imposes a duty to respect the legal rights of other persons living in the
society and the person who does wrong or breaches the duty is said to have committed
wrongful act.

Torts is the term in common law systems for a civilly actionable harm or wrong, and
for the branch of law dealing with liability for such wrongs. Analytically the law of tort (or
torts) is a branch of the law of obligations, where the legal obligations to refrain from harm to
another and, if harm is done, to repair it or compensate for it, are imposed not by agreement,
but independently of agreement by force of the general law. Socially the function of tort is to
shift loss sustained by one to the person who is deemed to have caused it or been responsible
for its happening, and in some measure to spread the loss over an enterprise or even the
whole community.

The Tort due to ambiguity in its structure and codification becomes a tough legal
problem to gauge what does and doesn’t constitute a tort. In most jurisdictions the extent and
intensity of various offences categorized as torts varies, however, there is no homogenous
way to identify torts and therefore it is important to have a structured set of fundamentals to
link Torts to.

These fundamentals can also be called as the essentials for Torts. The essentials for
torts help to provide a framework of rules to give rise to the tortuous liability. These help in
creating a balance between the injured party’s damage and the liability of the defendant for
the same, in order to aid smooth functioning of this wing of civil law.

NATURE AND DEFINITION OF TORT

• Tort is a French term which means ‘wrong’ in English.

• Origin of ‘tort’- derived from Latin word “tortum” meaning ‘to twist- i.e. twisted or
crooked conduct ’.

• Basis of torts

• Ubi jus ibi remedium- It means ‘where there is a right there is a remedy’. This Maxim
is the foundation of the law of torts. It is a fundamental principle that no wrong can
remain without a remedy.

• Right without a remedy is toothless. The court in Ashby Vs White recognized the
principle and held that if a person has a right he must have the means to vindicate and
maintain it.

• The law of tort is based on English common law. it is basically the product of judicial
decisions.

• Supreme Court in Rajkot Municipal Corporation versus Majnuben Jayantilal Nakum

1997- held that in absence of statutory law with respect to torts common law
principles evolved in England may be applied in India.

Definition of Tort:

• Salmond- “It 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.”

• Winifield- “Tortious Liability arises from the breach of a duty primarily fixed by the
law: this duty is towards persons generally and its breach is redressable by an action
for unliquidated damages.”
 • Fraser- “It is an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.”

• The definition of the Limitation Act, 1963 - Section 2(m), “ Tort means a civil wrong
which is not exclusively a breach of contract or breach of trust.”

• The basic idea which is indicated by these definitions is-

• Firstly, tort is a civil wrong, and

• Secondly, every civil wrong is not a tort. There are other civil wrongs also, the
important of which are a breach of contract and breach of trust.

• The damages in torts are unliquidated which means they are not pre decided.

Tort v. Torts

✓ The law of Tort, i.e., is every wrongful act, for which there is no justification or
excuse to be treated as a tort. Winfield was the supporter of this theory according to
him if wrong happens without justification the person will be liable. Winfield ’s book
is titled as ‘law of tort’
✓ The Law of Torts, consisting only of a number of specific wrongs beyond which the
liability under this branch of law cannot arise. Salmond was the supporter of this
theory according to him the liability arises only when the wrong falls in one of the
specified tort. This theory is also known as Pigeon Hole Theory. Salmond book is
titled ‘law of torts’

• Essentials of Tort

• The most common essentials for tortious liability are:

1) Act or omission on part of defendant

2) Such Act or omission result in legal damage i.e. violation of a legal right
vested in plaintiff.

• Both positive act and negative act [omission] make a person liable in torts. The Act
must be a wrongful act or omission

• If there is a legal duty upon any person to do or refrain from doing any acts and he
violates such duty then also he is made liable in torts.

• The plaintiff has to prove that he has suffered legal damage as a result of act or
omission of defendant unless there is any violation of legal right of plaintiff there
cannot be any action in torts

• Following are the two maxims governing this principle

1) Injuria sine damnum

2) Damnum sine injuria

• Injuria sine damnum

✓ Injuria means infringement of a legal right

✓ Sine means without

✓ Damnum means substantial harm, loss or damage

✓ The Maxim injuria sine damnum means violation of legal right without any harm or
damage to the plaintiff

✓ The essence of action in torts is violation of legal right. Therefore if there has been
injury for violation of legal right but there is no damage or loss caused to the plaintiff
then also the plaintiff can sue for the action of torts.

✓ Ashby v. White- Plaintiff was Voter who was not allowed to vote by defendant, the
candidate plaintiff wanted to vote for won nonetheless, court held defendant as liable;

✓ Bhim Singh v. State of J&K- An MLA was wrongfully detained by the police
because of which he could not attend assembly session for which court awarded
Rs.50.000 in damages

• Damnum sine injuria: When there is no violation of a legal right, no action can lie in
a court of law even though the defendant’s act has caused some loss or harm or
damage to the plaintiff.

• Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival

school to that of the plaintiffs. Because of the competition the plaintiffs had to reduce
their fees. It was held that the plaintiffs had no remedy for the loss suffered by them;

• Magul Steamship co. v. McGregor Grow and Co. - A number of steamship

companies drove the plaintiff out of the business by combining an offering reduced
Freight. The court held that the plaintiff had no cause of action because the defendant
employed lawful means to reduce Freight.

• Mayor of Bradford Corporative v. Pickles- The House of Lords went a step further
and held that even if the harm to the plaintiff has been caused maliciously. No action
can lie for the same unless the plaintiff can prove that he has suffered injuria.

• Chesmore vs. Richards the plaintiff was useing the water stream for his mill. This
water came from an underground stream. Defendants dug a well on their land and the
water from the stream was formed into that well. The court held that defendants were
not liable.
• Town Area Committee v. Prabhu Dayal- The plaintiff made certain construction
without complying with the provisions of the U.P. Municipalities Act. The defendants
demolished the construction. The plaintiff sued the defendants contending that the
demolition was illegal as some of the officers of the Town Area Committee were
acting maliciously in getting the construction demolished. The Allahabad High Court
held that the demolition of a building illegally constructed was perfectly lawful. The
Court did not investigate the question whether the act was done maliciously or not as
the same was considered to be irrelevant.

CLASSIFICATION OF TORTS- BASED ON MENTAL ELEMENT

1) Those involving intention and where the mental element is relevant, (Assault, Battery,
Trespass etc.)

2) Those involving negligence,

3) where the mental element is not relevant i.e. wrongs of strict liability, absolute
liability

• Tort v. Crime v. Breach of contract

• ‘Crime ’ is a wrongful act, which results from the breach of a duty recognized by
criminal law, it is a Public wrong, which occurs on breach of Public duties. In crime
the wrongdoer is prosecuted by the state, it is a public wrong

• ‘Breach of contract ’ is the non-performance of a duty undertaken by a party to a

contract,

• ‘Tort’ is a breach of duty recognized under the law of torts; it is a Private wrong,
which occurs on breach of private duties.

• It is a Private wrong which means action against the ‘tort-feasor’ or ‘wrongdoer’ is

brought by the injured party.

• Tort is a private wrong that contravenes the legal right of an individual or a group.
BIBLIOGRAPHY

The following sources have been referred during the Research for the creation of the project:

1. Bangia, R.K., The Law of Torts, Allahabad Law Agency Law Publishers, (2019)

2. Levmore, Saul; Sharkey, Catherine M.,Foundations of Tort Law, Lexis Nexis, (2009)

3. Coleman, Jules, Scott Hershovitz, and Gabriel Mendlow, "Theories of the Common
Law of Torts", The Stanford Encyclopedia of Philosophy (Winter 2015 Edition),
Edward N. Zalta (ed.),

Available at: https://plato.stanford.edu/archives/win2015/entries/tort-theories/

4. Tyagi,Ritwik, “Essential Elements of Law of Torts, Legal Jumble”, 30 August 2020

Available at: https://medium.com/legal-jumble/essential-elements-of-the-law-of-torts-
f0af3e8e7f27

5. Gloucestershire Grammar School(1410) Y.B

6. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494

7. Municipal Corporation Of Delhi v. Subhagwanti & Others, 1966 AIR 1750