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GENERAL PRINCIPLES
(Evolution; Definition; Nature, Scope and Objects of Torts)
QUESTION BANK
Q.1. "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 Trust, or other equitable obligations" as Salmond describes a tort. Explain and state the nature of tort in brief.
Q.2. Distinguish a tort from a breach of contract. Can the same wrong constitute both a tort and a breach of contract?
Q.3. All torts are civil injuries but all civil injuries are not torts. Explain fully.
Q.4. Define 'Tort' and clarify the distinction between a tort and a crime.
Q.5. Define 'Tort'. What are its main characteristics?
Q.6. Define 'Tort' and distinguish between 'Tort' and 'breach of contract'.
Q.7. Discuss, briefly the evolution and development of the law of Torts in England.
NOTES
1. 'Damages and Damage'.
2. Origin and development of tort.
SYNOPSIS
I. TORT DEFINED: -
1. Salmond: -
2. Ratanlal and Dhirajlal:-
3. P. H. Winfield: -
4. According to Fraser,-
5. Privy Council-
II. NATURE OF THE LAW OF TORTS:-
III. The Three Essentials/Components of a Tort-
IV. WRONGS WHICH ARE NOT TORTS: -
(a) Exclusively criminal wrongs: -
i. As to the nature of wrong:-
ii. As to the remedy available:-
iii. As to the procedure:-
(b) Civil wrongs which are exclusively contracting:-
1) Nature of right:-
2) Pravity:-
3) Consent:-
4) Motive:-
5) Remedy:-
6) Duty:-
7) The starting point of the period of Limitation:-
(c) Breaches of trust or other equitable obligations:-
(d) Wrongs that are quasi-contractual:-
I. TORT DEFINED: -
The French word 'tort' means 'wrong'. It is derived from the Latin term 'tortum', which means 'to twist'; thus, 'tort' implies conduct that is 'twisted' or 'wrongful', 'crooked' or 'unlawful'. This branch of law consists of various 'torts' or wrongful acts whereby the wrongdoer violates some legal right vested in another person. The law imposes a duty to respect the legal rights vested in the members of society, and the person who breaches the duty is said to have done the wrongful act.
The main object of the law of torts is compensation to the victim or their dependents. Another aim of the law of torts is to deter wrongdoers by awarding exemplary damages.
Defining 'Tort' is a difficult task due to its growing scope. Some of the important definitions of tort are as follows.
1. Salmond: -
"Tort is a civil wrong, for which remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or breach of trust, or other merely equitable obligations".
2. Ratanlal and Dhirajlal: -
"Tort is a civil wrong independent of contract, for which the appropriate remedy is an action for unliquidated damages".
3. P. H. Winfield: -
"Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally, and its breach is redressible by an action for unliquidated damages".
4. According to Fraser: -
"A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party".
5. Privy Council-
"Tort is an act or omission which prejudicially affects another and some legal rights giving him a right to claim damages".
Thus, from the above definitions, it can be said that-
(i) Tort is a civil wrong,
(ii) This civil wrong is other than a mere breach of contract, breach of trust or breach of remedy of equitable obligations, trusts, etc.
(iii) This wrong is redressible by an action for unliquidated damages.
Other Remedies: While damages are the primary remedy, the Law of Torts also provides Injunctions (court orders to stop a continuing wrong, like a nuisance) and Restitution (return of property).
The person who commits the wrong is called 'tort-feasor' or 'wrongdoer', and his act is called a 'tortious act.'
II. NATURE OF THE LAW OF TORTS:-
While considering the nature of the law of torts, an interesting question arises that-
(i) Is it a Law of Torts? i.e., does the law of torts consist of several specific rules prohibiting only certain types of activities? (Like in BNS, The Prevention of Money Laundering Act, 2002 (PMLA), The Prohibition of Child Marriage Act, 2006, The Consumer Protection Act, 2019 etc.) or
(ii) Is it the Law of Tort? i.e., does it consist of fundamental general principles based on the concept that 'it is wrong to cause harm to other people?' though it falls under any of the heads recognised in torts or not?
Fredric Pollock and Salmond champion the former view; according to them, it is a Law of Torts. Salmond mentioned that "there is no English Law of tort; there is merely an English Law of torts", i.e., the law of torts consists of specific, well-defined wrongs and not general principles. According to another supporter of this view, i.e., Sir. Fredric Pollock- the law of torts consists of a 'neat set of pigeon-holes, each consisting of a specific tort. If the defendant's wrong does not fit in any of these pigeon-holes (i.e., specific heads) of tort, like assault, battery, deceit, slander, etc., he commits no tort. This theory was first approved in the case.
In Allen V/s. Flood
The Court observed that the plaintiff must bring his case under one of the well-recognized heads of torts (e.g., Assault, battery, mayhem, libel, etc.).
According to the second view, it is merely the Law of Tort. Sir Winfield supports it. He says that "all injuries to another person are torts, whether it falls in any of the heads recognised in torts or not". According to him, the basis of tortious liability is the "damage caused to another person willfully and intentionally, without just cause and excuse". Even the Indian Supreme Court, in various cases, upheld this view; one of them is Ashby V. White (discussed later). According to this school of thought, the first view limits the scope of tort law. The "Law of Tort" (Winfield's view) is what allows courts to create new torts to address modern problems, such as the Tort of Harassment or Strict Liability (Rylands v. Fletcher).
Conclusion: In recent times, neither of these theories has been accepted in its entirety to the exclusion of the other.
In modern times, the scope of torts is changing rapidly. This is because people's duties towards others are increasing in modern times. Thus, violating a duty to injure someone else's reputation results in the tort of defamation, and violating a duty not to interfere with the possession of another person's land results in the tort of trespass to land. The duty of companies is to take care while providing consumable goods to consumers. The 'public carrier provider' duty is to care for the passengers. The duty of the driver is to drive carefully. The duty of the hazardous industries to take care of the labour, the new emergence of consumer protection laws, etc., expands the scope of tort.
III. The Three Essentials/Components of a Tort-
The law of Torts is fashioned as "an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another". An act which infringes a legal right is a wrongful act, but every wrongful act is not a tort. The following ingredients shall be proved to constitute a tort or civil injury.
1. There must be a wrongful act committed by a person.
2. The wrongful act must give rise to legal damage.
The wrongful act must be of such a nature as to give rise to a legal remedy as an action for damages. [Discussed in detail in the second topic]
These ingredients are constituents of torts which attract tortious liability. The concepts of Strict Liability, Absolute Liability, and Vicarious Liability are fundamental to the nature of torts. The law imposes these distinct forms of liability based on the inherent risk of the defendant's activities, the nature of their enterprise, or the specific legal relationship between the parties, rather than requiring proof of standard fault or wrongful intent.[Discussed in detail at appropriate places in this book]
IV. WRONGS WHICH ARE NOT TORTS: -
Four classes of wrongs fall outside the sphere of tort. Moreover, these four classes of tort form the core of civil wrongs.
a) Exclusively criminal wrongs: -
Ordinarily, wrongs are either civil or criminal. Thus, detention, conversion, and wrongful dismissals are purely civil wrongs, i.e., torts. On the other hand, dacoity, murder, forgery, etc., are purely criminal wrongs, i.e., crimes. Both a tort and a crime resemble each other in that both are violations of rights in rem, and both rights and duties are fixed by law (irrespective of the parties' consent).
The following are points of distinction between civil and criminal wrongs: -
i. As to the nature of wrong:-
A tort is a private wrong, an infringement of an individual's private or civil right.
On the other hand, a crime is an invasion of public rights and duties affecting society. Hence, a State is a party in criminal proceedings.
ii. As to the remedy available:-
In 'tort', the wrongdoer must compensate another party. Whereas in crime, he is punished by the State; even in crime, compensation to victims may be awarded in addition to punishment. But the nature of the remedy remains the same, i.e., punishment.
iii. As to the procedure:-
In tort, the injured party files the suit in civil court. In crime, the proceedings are taken and conducted in the name of a state in criminal courts.
b) Civil wrongs, which are exclusive contracts:-
Tort and breach of contract are alike, as much as private rights are infringed. Moreover, in both cases, action is taken by a person injured, and the remedy is by way of compensation or damages.
Following are, however, some of the differences between tort and breach of contract:-
1) Nature of right:-
A tort is a violation of a right in rem, i.e., a right exercisable against the whole world. In contrast, a breach of contract is an infringement of a right in personam, i.e., a right exercisable against a definite person or persons.
2) Privity:-
In tort, no privities exist. In other words, action can be brought against a person who violates personal rights. However, in a breach of a contract, there should be privity between the parties because a breach of a contract gives right in personam (i.e., among the persons who have entered into a contract).
3) Consent:-
In tort, an obligation arises independent of consent (i.e., a tort is inflected against the will without the other party's consent). In contrast, consent must always exist between the parties in a contract.
4) Motive:-
In a tort, the motive is often taken into consideration. However, in the contract, the motive of the defendant is generally immaterial.
5) Remedy:-
In tort, the remedy is to bring suit for unliquidated damages (Unprefixed). In breach of contract, the remedy is liquidated damages (i.e., prefixed).
6) Duty:-
In the case of a tort, the duty is imposed by the law and is towards society in general. In the case of a contract, a contract between the parties fixes the duty, and it is imposed against a definite person or persons entitled to a contract.
7) The starting point of the period of Limitation:-
In tort, a limitation period for filing a suit usually runs from the date when the damage is suffered. Whereas, for a suit for breach of a contract, the limitation period runs from the date of the breach. In India, the Limitation Act has prescribed the period of limitation for filing a suit for tort.
(c) Tort and Breaches of trust or other equitable obligations:-
A breach of trust is neither a breach of contract nor a tort. Trust is a matter of confidence; it is merely an equitable wrong, not a tort.
(d) Wrongs that are quasi-contractual:-
Civil wrongs which create no right of action for unliquidated damages but give rise to some other form of civil remedy exclusively are not torts. Remedy in the form of unliquidated damages is the essence of a tort, but liquidated damages are the remedy in a quasi-contract. Quasi-contract, in truth, is neither a category of the contract nor of a tort, but it forms a distinct category called restitution.
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NOTE
SYNOPSIS
1. 'DAMAGE' and ' DAMAGES'.
Liquidated and unliquidated damages-
1. 'DAMAGE' and ' DAMAGES' .
The word 'damage' must not be confused with' damages'. These two words are not equivalent, nor is the term 'damages' the plural 'damages.'
The term 'damage' means and includes the loss of money, comfort, health, property, or the like caused by the defendant's wrongful act. In contrast, the term 'damages' means the monetary compensation claimed by the injured party and awarded by the court.
In short, 'damage' means the loss inflicted by the defendant's wrongful act, for the recompense of which the court awards pecuniary compensation, i.e. ' damages'.
Liquidated and unliquidated damages-
Damages in the law of torts are inherently unliquidated. This characteristic distinguishes a tort from other civil wrongs, such as a breach of contract or a breach of trust, where damages may be liquidated. Liquidated damages refer to such compensation which has been previously determined or agreed to by the parties. When the compensation has not been so determined, but the determination of the same is left to the court's discretion, the damages are said to be unliquidated.
Under the agreement to contract, the contracting parties can stipulate the exact amount of compensation payable in the event of a breach at the time of forming the agreement. If this amount represents a genuine pre-estimate of the loss, it is classified as liquidated damages.
Conversely, such pre-determination is impossible in tort law. Generally, the parties are complete strangers until the tort is committed, making it impossible to visualise or calculate the quantum of loss beforehand. Consequently, the compensation must be evaluated after the fact at the court's discretion, rendering tort damages strictly unliquidated.
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2. ORIGIN AND DEVELOPMENT OF TORT.
SYNOPSIS
I. DEVELOPMENT OF LAW OF TORTS IN ENGLAND-
1. The Separation of Wrongs (Early Anglo-Saxon Period)-
2. The Rigid Writ System and 'Form of Action' (14th Century)-
3. Writ of Trespass vs. Writ of Trespass on the Case-
4. Statutory Reforms and the Transition to Substantive Rights (19th Century)
5. The Role of Modern English Legislation
II. DEVELOPMENT OF LAW OF TORTS IN INDIA
1. Pre-Colonial Era (Hindu and Muslim Jurisprudence)
2. The Introduction of English Common Law
3. Justice, Equity, and Good Conscience
4. The Debate Over Codification-
5. Modern Codification of Specific Torts in India-
I. DEVELOPMENT OF LAW OF TORTS IN ENGLAND-
1. The Separation of Wrongs (Early Anglo-Saxon Period)-
Originally, English common law made no distinction between various legal wrongs. There was no clear demarcation separating Criminal Law, Tort Law, or Breach of Contract, etc. Legal liability was primarily focused on keeping the peace rather than classifying the nature of the civil wrong.
2. The Rigid Writ System and 'Form of Action' (14th Century)-
By the fourteenth century, remedies for wrongs became strictly dependent upon the system of Royal Writs. No plaintiff could bring an action in the King’s Common Law Courts without obtaining a specific writ issued in the King's name. Because the number of available writs was severely limited, the legal system was governed by the restrictive Latin maxim:
Ubi remedium ibi jus: "Where there is a remedy (a writ), there is a right." If an injury did not fit neatly into an existing, recognised "form of action" (writ), the plaintiff was left entirely without a remedy.
3. Writ of Trespass vs. Writ of Trespass on the Case-
The foundation of modern tort law emerged through two primary writs:
Writ of Trespass: Issued exclusively for direct, immediate, and forcible injury to a person, land, or goods (e.g., physically striking a person).
Writ of Trespass on the Case (or 'Case'): Developed later by the courts to provide a remedy for indirect or consequential injuries (e.g., digging a ditch that a person later falls into). This writ laid the groundwork for the modern law of negligence.
This rigid procedural system dominated English jurisprudence for nearly five hundred years.
4. Statutory Reforms and the Transition to Substantive Rights (19th Century)
The technicalities of the writ system often caused genuine claims to fail simply because a plaintiff selected the wrong form of action. This prompted major legislative overhauls:
The Common Law Procedure Act 1852: Abolished the necessity of mentioning specific forms of action/writs in pleadings.
The Judicature Acts 1873 and 1875: Fused the courts of Common Law and Equity, streamlining procedure. Legal pleadings were simplified to contain only a summary of material facts.
This shifted the foundational paradigm of the law from procedural formulas to substantive rights, giving rise to the modern maxim:
Ubi jus ibi remedium: "Where there is a right, there is a remedy."
Consequently, the Law of Torts transformed into a dynamic body of law primarily shaped by judicial decisions (judge-made law).
5. The Role of Modern English Legislation
While tort remains largely rooted in judicial precedent, Parliament has stepped in to amend the common law where social justice or changing times demanded intervention. Important historical statutes include:
Fatal Accidents Act 1846: Allowed compensation for families of individuals killed by wrongful acts.
Workmen’s Compensation Act 1897: Introduced employer liability for workplace injuries.
Law Reform (Miscellaneous Provisions) Act 1934: Allowed tort actions to survive the death of either the plaintiff or defendant.
Law Reform (Married Women and Tortfeasors) Act 1935: Restructured rules regarding joint wrongdoers and married women's liability.
II. DEVELOPMENT OF LAW OF TORTS IN INDIA-
1. Pre-Colonial Era (Hindu and Muslim Jurisprudence)
Under ancient Hindu and Muslim legal systems, the concept of a civil tort was significantly narrower than in English law. The legal systems prioritised criminal punishment and state-enforced penalties over civil compensation for private wrongs.
2. The Introduction of English Common Law
The modern Law of Torts in India is a direct import of English Common Law. However, its application is adaptive rather than absolute. Indian courts apply English common law principles only to the extent that they are suitable to Indian society, culture, and socio-economic circumstances.
3. Justice, Equity, and Good Conscience
Where there is no specific statutory codified law or established customary law governing a civil dispute, Section 9 of the Civil Procedure Code (CPC) impliedly empowers Indian civil courts to try all suits of a civil nature. In doing so, judges rely on the foundational principle of:
"Justice, Equity, and Good Conscience"
As interpreted by the Privy Council, this phrase means the application of English law rules, but carefully modified and tailored to fit Indian conditions. It grants Indian judges the creative freedom to extend existing principles, adapt foreign doctrines, or forge entirely new laws to meet the demands of justice.
4. The Debate Over Codification-
Unlike the Indian Penal Code (1860) or the Indian Contract Act (1872), the Law of Torts in India remains largely uncodified. This unique status comes with a distinct set of advantages and disadvantages:
The Advantage (Flexibility): Leaving the law uncodified prevents it from becoming rigid. It allows tort law to rapidly evolve alongside changing technologies and social standards without waiting for legislative amendments.
The Disadvantages (Uncertainty): Because it is based on judicial precedent, the law is scattered across thousands of judgments. This forces judges and lawyers to search extensively for applicable rules. Furthermore, conflicting judgments from different High Courts can occasionally cause inconsistency and lead to unnecessary litigation.
5. Modern Codification of Specific Torts in India-
To address pressing public issues, the Indian Legislature has codified specific pockets of tortious liability into statutory law. Examples include: The Fatal Accidents Act, 1855, The Employee's Compensation Act, 1923 (formerly Workmen's Compensation Act), The Motor Vehicles Act, 1988 (dealing with third-party insurance and accident claims), The Consumer Protection Act, 2019 (codifying product liability and consumer wrongs).
Moreover, the Indian judiciary has shown ultimate independence by establishing autonomous doctrines, such as the principle of Absolute Liability formulated in M.C. Mehta v. Union of India (1987), proving that Indian tort law is no longer a mere shadow of English law, but a living, native jurisprudence.
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