1.

DEFINITION, NATURE &

DEVELOPMENT OF TORT LAW
Prof. C. Srinidhi
 INTRODUCTION
Tort is a civil wrong; it is committed against an
individual unlike a crime which is committed
against the state.

Tort is a French equivalent of the word ‘wrong’

It is said to be derived from the Latin term tortum

Tortum would mean to twist and implies conduct

which is twisted or tortious.
DEFINITIONS
Winfield:
“Tortious liability arises from breach of duty primarily
fixed by law; this duty is towards persons generally and
its breach is redressible by an action for unliquidated
damages”
Duty primarily fixed by law
An essential principle of tortious liability is that the
duty is always fixed by law itself and NOT by any
agreement between parties.
Therefore parties cannot create a tortious liability
through a contract nor can they ‘negate’ a tortious
liability through a contract.
Duty is towards persons generally
The word generally here implies that the duty
applies to everyone irrespective of their consent or
contract
For example- I am duty bound not to trespass into
my neighbours’ land. Similarly he is also duty
bound not to trespass into my land. Likewise, all
our other neighbours and also others who are not
our neighbours are bound by the same law not to
trespass into each other’s lands.
Action for unliquidated damages:
Unliquidated damages mean damages which are
unquantified.
The damages which are to be paid are unknown until
the matter reaches the court.
The court decides the quantum of damages depending
on the merits of the case.
This is in contrary to contracts where it is possible to
calculate damages before hand in case of breach.
The damages which can be calculated before hand are
called liquidated damages.
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.
Tort is a civil wrong
Wrongs can be civil or criminal. Tort is a civil wrong.
This means that the plaintiff in a torts case institutes
civil proceedings against the defendant. The remedy
provided for a civil wrong is damages.
not exclusively the breach of a contract or the breach of
a trust
This implies that tort is NOT a breach of contract or a
breach of trust.
We can observe that tort has the following
characteristics:
1. Tort is a civil wrong
2. Tort is other than a mere breach of trust or
contract
3. Tort is redressible by an action for unliquidated
damages
NATURE
Tort v. Crime
A tort is an injury which is caused to an individual
while crime is said to be an injury caused to the
public as a whole
Tort being a civil wrong the plaintiff is free to make
a settlement with the defendant and withdraw the
suit. This is not allowed in criminal cases as even
though victim is an individual the case is filed by
the State.
Object of a civil action is private reparation and
satisfaction while object of criminal prosecution is
to safeguard and promote public interests by
preventing offences
Remedy available for aggrieved party in torts is
damages or compensation whereas criminal law
awards punishment where the aim is to deter the
offender from committing crimes further.
Tort v. Breach of Contract
The duty in contract arises from an agreement of the
parties but duty in torts exists towards all persons
generally.
In an action for tort damages are always unliquidated
unlike in contract the damages may be liquidated if
mentioned in the contract
Tort is a violation of right in rem (which can be fixed
against a determinate person and is available against
the world at large) whereas breach of contract is an
infringement of a right in personam (which can be
fixed against a determinate person and the community
at large has no concern)
 Law of Tort or Law of Torts
There are two contrasting theories regarding whether to
call law of tort or law of torts
Law of Tort
Winfield is the chief exponent of ‘Law of Tort’ where he
believes that tort consists not merely of those torts which
have acquired specific names but also included the wider
principle that all unjustifiable harm is tortuous.
This theory does not believe in enlistment of wrongs it
calls for a general principle of liability where every act
without any lawful excuse would be called a tort
This enables the courts to create new torts.
Winfield observes that law of tort is growing and
from time to time courts have created new torts.
For example, under this theory, if A causes harm to
his neighbour, he (neighbour) can sue A whether
the ‘wrong’ happens to have a special title like
defamation, slander, negligence or not. He can sue
even if that ‘wrong’ does not have a specific name
for it. The only criteria is that, the ‘wrong’ must be
something for which there is no lawful justification
or excuse.
Law of Torts
Salmond is the chief exponent of this theory. It is called
the pigeon hole theory.
This theory implies that tort law consists only of some
specified wrongs. The liability arises only if the tortious
act falls under these specified wrongs. (like trespass,
assault, defamation, etc.)
There is no liability for the wrongs which do not fall
under the recognized categories of torts.
If there no pigeon hole (category of tort) in which the
plaintiff’s case cannot fit in then according to this
theory the defendant has committed no tort
For example,
If A commits a wrong against B then under this
theory the court has to look whether that wrong is
listed under any pigeon hole i.e. determine whether
the wrong committed by A falls under any specified
category of torts (pigeon hole).
In case there is no pigeon hole under which the
wrong committed by A falls, he cannot be made
liable for the wrong committed against B.
Basis of Tortious Liability
The law of torts is said to be a development of the
maxim ‘ubi jus ibi remedium’.
Ubi jus ibi remedium’ is a latin maxim which means
where there is a right there is a remedy.
The word ‘Jus’ means the legal authority to do or
demand something, and the word ‘remedium’
means the right of action in a Court of law or the
means given by law for the recovery or assertion of
a right.
Literal meaning of this maxim is that whenever there is
a legal right, there is a legal remedy. It also expresses
that there is no wrong without a remedy.
It means that where one's right is invaded or destroyed,
the law gives a remedy to protect it. Further, where
one's right is denied the law affords the remedy of an
action for its enforcement.
When a man has a right he must have means to
vindicate any infringement to his right. However, this
does not mean that there is a remedy for every wrong.
For example, there is no remedy for moral wrongs as
they are not recognized by law and law does not provide
any remedy for them.
Constituents of a Tort
1. A wrongful act or omission
2. The wrongful act or omission must result in a
legal damage or actual damage (injuria)
3. There must be a legal remedy for that damage
caused
1. A wrongful act or omission
The injury caused to the plaintiff should be a result of a
wrongful act or omission; positive wrongful act or
omission.
Wrongful acts include, trespassing into another’s land,
defaming a person, causing nuisance
Omission means not doing an act or legal duty one is
expected to do by law.
In the case,
Glasgow Corporation v. Taylor (1922) 1 AC. 44
The corporation had the duty to maintain the public
park. There were few poisonous trees in the park
around which the corporation failed to put fencing. A
child plucks a fruit from one of the trees and dies. The
court held the corporation responsible for omission
of its duty to maintain the park.
Wrongful act or omission must be recognized by
law. Mere moral or social wrongs will not amount to
tortious liability.
2. Damage
Damage means harm or loss suffered as a result of
some wrongful act of another.
In order to sue the defendant successfully for a tort
action, the plaintiff must prove that he has suffered
a legal damage resulting from a violation of his legal
right
No violation of legal right = no action under torts
If there has been violation of a legal right, it is not of
relevance whether the plaintiff has suffered any
actual loss.
Legal damage can be understood by these two
maxims:

1. Injuria sine damnum

2. Damnum sine injuria
Damnum means damage in the substantial sense
like loss of money, loss of comfort, service, health
etc.
Injuria means infringement of legal right
Sine means without
To constitute a tort, violation of a legal right is
compulsory, damage caused is irrelevant
Injuria sine damnum
This means a violation of a legal right without any
actual loss or damage.
There are two kinds of torts-
1) Which are actionable per se- actionable without the
proof of damage or loss. The plaintiff need not have
to have suffered any loss or damage due to the act of
the defendant. The only thing which has to proved is
that the plaintiff’s legal right has been violated as a
consequence of the defendant’s action (Trespass to
property, assault, battery, false imprisonment)
2. Which are actionable only on the proof of some
damage or loss- defendant will be held liable only if in
consequence of his act damage is inflicted on the
plaintiff. For example, the tort of slander in most
cases not actionable without proof of special damage.

Injuria sine damnum belongs to the first kind.

CASE LAWS
Ashby v. White (1703) 92 ER 126
Facts
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 refusal because the
candidate for whom he wanted to vote won in spite
of that.
The defendant was held liable
Held,
“Every injury imports a damage; though it does not cost the
party one farthing, and it is impossible to prove the
contrary; for a damage is not merely pecuniary, but an
injury imports a damage, when a man is thereby hindered
of his right. As in an action for slanderous words, though a
man does not lose a penny by reason of the speaking them,
yet he shall have an action. So if a man gives another a cuff
on the ear, though it costs him nothing, not so much as a
little diachylon (plaster), yet he shall have his action, for it
is personal injury. So a man shall have an action against
another for riding over his ground, though it does him no
damage; for it is an invasion of his property and the other
has no right to come there”.
Bhim Singh V. State of J&K
Facts
Bhim Singh, the plaintiff was an MLA of Jammu and
Kashmir.
He was wrongfully detained by the police while he
was going to attend the assembly session.
He was not produced before the magistrate within
the requisite period
Due to this, he was deprived of his right to attend
the assembly session
The court awarded him exemplary damages worth
Rs. 50,000/-
Damnum Sine Injuria
Actual substantial loss without infringement of
legal right
If a damage however trivial or substantial is not
coupled with violation of legal right, it is not
actionable.
This generally happens when a person while
exercising his legal right causes harm to another
Case Laws
Gloucester Grammar School case (1410) YB 11 Hen IV
Facts
Defendant had set up a rival school to that of the
plaintiff
He charged students lesser fee that that of plaintiff.
Due to this the plaintiff’s had to reduce their fee
substantially and have suffered losses as a
consequence.
Plaintiff filed a case against the defendant for the
same
It was held that the plaintiff had no cause of action
against the defendant on the ground that bonafide
competition can afford no ground of action,
whatever damage it may cause.
Chasemore v. Richards
A landowner and a mill owner have been using
water from a stream which was irrigated by
underground water
Adjoining neighbour dug a well due to which their
supply of water was interrupted
The landowners brought an action against the
defendant.
It was held that they had no right to any relief as the
defendant was merely exercising his legal right of
enjoying his land
Mogul steamship Co. v. Mc Gregor Gow & Co. (1892) A.C. 25
Defendants were ship owners who carried freight from
one port to another.
In order to drive the plaintiff out of business they
reduced their charge and also gave special discounts to
customers who exclusive did business with them and
not with plaintiff.
Consequently, plaintiff has suffered huge losses
The court held that Plaintiff had no actionable claim as
he had no legal right which has been infringed.
Damage done by competition in trade was not
actionable
Ushaben v. Bhagyalakshmi Chitra Mandir AIR 1978 Guj.
13.
Facts
Plaintiffs wanted to prevent defendants from a film
named Jai Santoshi Maa which hurt the religious
sentiments of the plaintiff as Godessesses Lakshmi,
Parvati and Saraswati were shown to be jealous of each
other and were ridiculed.
Court held that hurt to religious sentiments would not
constitute violation of a legal right.
No person has a legal right to enforce his religious
views on another or prevent another from doing a
lawful act only because it does not fit in his religion.
The plaintiffs were given no remedy as there was no
violation of legal right
Seetharamayya v. Mahalakshmamma AIR 1958 AP 103
Defendants constructed bunds and a trench around
their lands to prevent water from a stream flowing
into their lands
As a result, the rain water flowed into the plaintiff’s
land causing damage
Plaintiffs prayed to the court to direct defendants to
demolish the bunds and fill up the trenches and
sought for permanent injunction preventing
defendants from constructing bunds and trenches
in the future.
Held,
The owner of the land near a river has a right to build
a fence upon his own ground to protect his land from
overflowing water. Hence, even though the plaintiff
has suffered damnum he has not suffered any injuria.
Dickson v. Reuter’s Telegram Co. (1877) 3 C.P.D. 1
A sent a telegram to B to for the asking for shipment
of certain goods
The Telegram company mistaking the address of C
to be that of B’s sent the letter to C.
C acting on the telegram had sent the goods to A
A refused to accept the goods stating he did not
order the goods from C but from B
C sued the telegram company for loss suffered by
him
Held,
C had no cause of action against the telegram
company as it did owe any duty of care to C. Hence, no
legal right has been infringed.