Originally, there was no distinction between various wrongs and there was no compartmentalization like crime, tort or breach of contract. Earlier, the only remedy available for the wrongs committed were punishments like putting the offender in jail. So, a need was felt to differentiate between more serious and less serious wrongs committed. Hence, emerged the concept of ‘Law of Torts.’ A tort is a civil wrong. This is basically a breach of a duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law.
The background of the Law of Torts will be discussed later in this article but, first, let us have a look at the definitions of ‘Torts’ given by various legal scholars:
Clerk and Lindsell – “Tort is a wrong independent of contract for which the appropriate remedy is a Common Law Action.
Frazer – “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.”
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 contract or the breach of trust or other merely equitable obligation.”
Winfield – “Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is repressible by an action for unliquidated damages.”
Section 2(m) of Limitation Act, 1963 – “Tort is a civil wrong which is not exclusively a breach of contract or breach of trust.”
But, these definitions are not found to be satisfactory on one basis or other. The main reason for this is because the wrongs included under Law of Torts are of diverse species, each having its own peculiar historical background.
When there was no distinction between various wrongs, various writs – particularly the writs of trespass and trespass on the case governed the position. In the fourteenth century, the success of an action depended on the availability of the abovementioned writs. If no writ covers a certain situation, the case may fail regardless of its justifiability. The rule followed at that time was ‘Ubi Jus Ibi Remedium’ i.e. where there is a Right, there is a legal remedy.
Then, some amendments were made to change this rule and therefore, in 1852, the Common Law Procedure Act was passed which abolished the writ system. Then came the Judicature Act, 1873 which stated that the pleading was to contain a summary of the relevant facts of the case. Hence, came the rule, Ubi jus ibi remedium’ i.e. where there is a right, there is a remedy.
The word ‘Tort’ is a French word which is derived from a Latin word ‘Tortus’ which mean ‘to twist’. So, as the name suggests, tort indicates conduct which is not straight but is twisted, unlawful, wrong or unjustified. Unlike criminal laws, the law of tort is uncodified. It is basically a breach of the standard of behaviour which is required to be followed by a reasonable/prudent person which arises in legal injury to another person.
The nature of Tort law is thus essentially concerned with compensation for damages for civil wrongs suffered as a result of another’s acts or omissions.
Law of Torts in India
As a general rule, the principles of English law are deemed to be applicable in India. The Indian Courts may adopt an English principle if they are in consonance with the concept of Justice, Equity and Good Conscience in India.
In India, significant growth in this branch of law is not seen as compared to England. There is very little tort litigation in India because of various reasons, which are: lack of awareness among the citizens, illiteracy, poverty, spirit of tolerance, high litigation costs, delay in the decision-making process and many other.
Types of Torts
Torts can be categorized largely into 3 types on the basis of wrongs caused which are as follows:
1. Intentional Torts – Harm or legal injury caused to another person intentionally by the wrongdoer is an Intentional Tort. These include acts such as Battery, Trespass, False Imprisonment, Assault, Slander and Libel.
2. Negligent Torts – Legal injury caused to a person due to the negligent/careless act of another person is called a Negligent Tort. These include examples a person has failed to behave with the level of care that a person with ordinary prudence would have done. This tort can be further understood with the help of case law –
Donoghue v. Stevenson
FACTS: The plaintiff’s friend purchased a bottle of ginger beer from the retailer for the plaintiff. The beer bottle was opaque and nothing could be seen inside the bottle. When the plaintiff consumed half of the contents of the bottle, she found the decomposed body of a snail in the bottle. Soon after, the plaintiff became severely ill. She filed a suit against the manufacturer for damages.
HELD: The manufacturer(defendant) pleaded the defence that he did not owe any duty towards the plaintiff. The House of Lords held that the manufacturer owed a duty of care towards the plaintiff. Also, the has a duty to take care that the bottle did not contain any noxious matter and hence, he was made liable for the breach of such duty.
3. Torts under Strict Liability – In the torts committed under this category a person is considered to be liable irrespective of his intention to commit the wrong-doing. These Torts are of such a strict nature, that the courts deem it fit to rule out the need for proving intention here. This tort can be further understood with an in-depth analysis of the case law Rylands v. Fletcher.
Rylands v. Fletcher
FACTS: The defendant got a reservoir constructed through independent contractors, over his land to provide water to his mill. There were old disused shafts under the reservoir. The independent contractor didn’t block them, due to which when water was filled in the reservoir burst the coal mines of the plaintiff and caused damages to him.
HELD: The court explained, when somebody keeps something on his property for his benefit it should not escape and affect others and hence, the defendant was made liable for his negligent act.
Essentials of a tort
i) Wrongful Act or Omission – It is the breach of Legal duty. Duty is a standard of behaviour which is required to be followed by a reasonable person. It must be noted that there must be a voluntary act or omission.
ii) The Wrongful Act or Omission must commit Legal Injury – Legal injury is the violation or infringement of an individuals right. It must be noted that damage or injury caused must be a legal one. There are certain cases where the damage caused does not give rise to any action.
iii) Legal remedy – Remedies will be provided only for the wrongs which come under the purview of Torts.
There are two principles in the Law of Torts which must be studied –
Injuria sine damno
Damnum sine injuria
(A) Injuria sine damno –
The literal meaning of Injuria sine damno is ‘injury without damage.’ When a legal injury is caused without causing any actual harm, loss or damage to the plaintiff, it gives rise to legal action as a violation of a legal right is done, regardless of the actual or physical damage caused. These types of tort are actionable in a court of law. Torts covered by injuria sine damno are actionable per se, i.e. actionable without the proof of any damage or loss caused.
Some case laws are discussed below which have been on the basis of this concept:
Ashby v. White
FACTS: The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer wrongfully refused to take plaintiff’s vote. No loss was suffered by such action because the candidate for whom he wanted to vote won the election.
HELD: It was held that the voter has a right to vote which was infringed by the returning officer. Hence, the defendant was held liable even if no actual or physical injury was caused to the plaintiff.
Bhim Singh v. State of Jammu & Kashmir
FACTS: The plaintiff, an MLA of the J&K Assembly was wrongfully detained by the police while he was going to attend the Assembly session. Also, he was not produced before the magistrate within the required period i.e. 24 hours.
HELD: It was held that the plaintiff was deprived of his constitutional right to attend the Assembly session. Also, his fundamental right to personal liberty under Article 21 of the Constitution was infringed and hence, the defendants were held liable.
(B) Damnum sine injuria –
the literal meaning of Damnum sine injuria is ‘Damage without injury.’ It means when an injury is suffered by the plaintiff but there is no violation of any legal right of a person. These types of situations does not give rise to any legal action because though, the damage is caused to the plaintiff, no infringement of legal right took place. These situations are not actionable in a court of law.
Some case laws are discussed below which have been on the basis of this concept:
FACTS: The defendant set up a rival school to that of the plaintiff’s. because of the competition, the plaintiff had to reduce the fees from 40 pence to 12 pence per scholar per quarter due to which he suffered great monetary losses.
HELD: It was held that although there was the monetary loss caused to the plaintiff, there was no infringement of the plaintiff’s legal right and hence, plaintiff action failed and the defendant was not held liable.
Ushaben v. Bhagyalaxmi Chitra Mandir
FACTS: The plaintiff sued the defendants for permanent injunction as movie “JAI SANTOSHI MAA” was hurting the religious sentiments as Goddess was depicted as jealous.
HELD: It was held that hurt to religious feelings had not been recognized as a legal wrong. Also, no person has a legal right o enforce their religious views on another or to restrain another from doing a lawful act merely because I did not fit in with the tenets of his particular religion. Hence, the defendant was not held liable.
In the view of the above discussion, it can be said that the law of tort emerged because of the urgent need to differentiate various wrongs on the basis of their severity. Law of tort has laid down a standard of behaviour which we need to follow to make the society more organised and law-abiding. It is also clear that the law of tort is still evolving and improvements are continuously being made in this discipline. Also, in India, there is a need to spread awareness among the citizens regarding the law of tort, so they can be aware of their rights and duties, and in that way they can benefit themselves and also contribute towards a progressive society.
2. R.K. Bangia, Law of Torts (14th Edition)
5.(1703) 92 ER 126, (1703) 2 Ld Raym 938,
7. (1410) Y.B 11. Hen. IV
BY- Lakshya Sharma | Aligarh Muslim University