A.

INTRODUCTION:
1. The Tort is of French origin. The root is ‘Tortum’ in Latin which means ‘twist’. It
implies a conduct which is ‘tortious’ , or, twisted.. The equivalent word in English is
“Wrong”. In Roman it is “delict” and in Sanskrit it is “Jimha” which means ‘crooked’.

2. How did the French word ‘Tort’ come to India?.

a) It came to India through England. In 1065 England was conquered by Normans

who were the French speaking people of Normandy, a region of France. After
Norman conquest, French became the spoken language in the Courts in
England, and thus many technical terms in English law owe their origin to
French, and ‘Tort’ is one of them.
b) In British India, the first courts were established by the British in the Presidency
towns of Madras, Bombay and Calcutta as Mayor’s courts. The Charter that
established these courts required them to adopt the English common law of torts
in force at that time to their Indian jurisdiction. Thus, ‘tort’ was introduced into
the Indian legal system.
c) As for the other courts in India, which were established by local acts, there was
no such express provision. However, these local acts contained a section that
required them to act according to “justice, equity and good conscience” in cases
where there were no specific law or usage. The expression “justice, equity and
good conscience” has been interpreted by courts to mean English common law
insofar as they are applicable to the situation, facts and circumstances of the
case before the courts.
3. Meaning of Tort:

At a general level, tort is concerned with allocation of responsibility for losses, which
are bound to occur in society.
Tort is a branch of law governing actions for damages for injuries to private legal
rights of a person, say, right to property, right to personal security, right to reputation,
etc.,
B. DEFINITION OF TORT:
1. SALMOND’s Definition:
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

2. WINFIELD’s Definition:
‘TortIous liability’ arises from the breach of duty primarily fixed by law. This duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.
3. FRASER’s Definition:
 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.
4. POLLOCK’s Definition:
‘Tort’ is an act or omission (not merely the breach of a duty arising out of a personal
relation, or undertaken by contract) which is related to a harm suffered by a
determinate person, giving rise to a civil remedy which is not an action of contract.
‘The law of tort’s in civil wrongs is a collective name for the rules governing many
species of liability which, although their subject matter is wide and varied have
certain broad features in common, are enforced by the same kind of legal processes
that are subject to similar exceptions.

5. Clerk & Lindsell’s Definition:

A tort may be described as wrong independent of contract, for which the appropriate
remedy is common law action

6. Limitation Act 1963

Sec 2 (m) of the Limitation Act 1963 defines “Tort means a civil wrong which is not
exclusively a breach of contract or trust.” This is quite similar to Salmond’s
definition.

C. ANALYSIS OF WINFIELD’S DEFINITION OF TORT:

1. 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. For Example I am under a legal duty not to trespass on my neighbour’s
property. This is a duty primarily fixed by law on me. Similarly, by the same principle
my neighbour cannot trespass into my property. As per Winfield’s definition, liability
arises from the breach of such duties fixed by law. Any person who commits such a
breach can be proceeded against in a court of law by the person whose rights are
breached. There are in some cases, (called ‘vicarious liability cases’) though the
breach is not committed by himself yet he could be held liable, if the breach is
committed by his servant, or, agent, or partner.
Example: A who is the driver of B’s car knocks down C through his rash and
negligent driving. Though, A has breached the duty fixed by law, his master B will
become liable n an action initiated by C in court under the law of tort.

2. Duty is towards persons generally:

Here, the word ‘generally’ implies that applies to all. 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. In
 other words, it is common, or, not unusual for the parties in a ‘tort action’ to know
each other. This character distinguishes tort from contract, bailment and quasi-
contract.

3. Action for unliquidated damages:

In tort the damages are unknown and ‘unquantified’ till an action for damages arises in a
court. Thereafter, the court decides the quantum of damages based on merits of the claim and

circumstances of the case. Hence, theses damages are by its nature, “unliquidated’,
unlike in a contract where it is possible to calculate the damages ( in the event of a
breach) in advance where, this is known as ‘liquidated damages’.

4. Other Remedies:
Besides un-liquidated damages, which are usually in the form of monetary
compensation, there are also other remedies available in a case of tortious liability.
These are: a) Injunction, b) Self –help, and c) Restitution of property.

5. Criticism (shortcomings) of Winfield’s definition:

a) In framing this definition, Winfield is not seeking to indicate what conduct is and
what is not sufficient to involve a person in tortious liability, to distinguish from
certain other branches of law
b) The phrase 'duty towards persons generally' is vague and not adequate to include
duties arising from special relationships like doctor and patient etc., and to
exclude duties arising between guardian and ward or trustee and beneficiary etc.
which fall outside the ambit of law of tort.
c) The phrase 'liability arises from the breach of duty', may be true at an earlier stage
of development of law of tort, but it is not applicable or appropriate to an
important category of liability at the present day, for example, vicarious liability
of a master for his servant's
d) ‘Unliquidated damages’ is not the only remedy. There are other remedies such as
selfhelp, injunction and specific restitution of property also available.

D. ANALYSIS OF SALMOND’S DEFINITION OF TORT

1. Tort is a civil wrong.
A ‘Wrong’ can be civil or criminal. Tort belongs to the category of civil wrongs. In
the case of a civil wrong, the injured party institutes civil proceedings against the
wrongdoer and the remedy is damages. The injured party is compensated by the
defendant for the injury caused to him by another party. Whereas, in the case of a
criminal wrong, the State brings riminal proceedings against the accused, and the
remedy is not compensation. Punishment is provided to the wrongdoer. In a case
where the act results in both civil as well as criminal wrong then both the civil and
criminal remedies would concurrently be available

2 Tort is other than Breach of Contract or Breach of Trust:

 In order to determine whether the wrong is tort or not, the following steps are to be
followed, a) Whether the wrong is civil or criminal.
b) If it is civil wrong, it has to be further seen that whether it belongs to another
recognised category of the civil wrongs, such as breach of contract or breach of
trust.
c) It is only when the wrong does not belong to any other category of the wrong that
is, breach of contract or trust, it is tort and if the wrong is breach of contract or
trust, it is not a tort.
However, if the act involves two or more civil wrongs, one of which may be a tort, in
such a case injured party can either claim damages under law of torts or under other
breach of civil wrong for example, breach of contract, but cannot claim damages
twice.
3 Tort is redressible by action for unliquidated damages:
Damages is the most important remedy for a tort. After the commission of the wrong,
it is not possible to undo the harm which has already been caused but it is the
monetary compensation which can be awarded to the injured party. for example, if
there is attack on the reputation of the person, there is nothing that can be done
restore his lost reputation, but monetary compensation equivalent to harm can be paid
to the injured. Unliquidated damages means when the compensation has not been
determined previously or agreed by the parties but it is left to the direction of the
court. These are the unliquidated damages which distinguish tort from breach of
contract or breach of trust in which damages may be liquidated that is, previously
determined or agreed to by the parties.

4. Criticism of Salmond’s definition: The definition given by Salmond fails to

underline the essential characteristics of tortious acts. According to this definition tort
is a wrong but it does not explain what is wrong and what kinds of wrong explaining
jural features of tort. Moreover the expression "civil wrong" itself requires
explanation. Besides, Salmond’s definition also suffers from all the shortcomings of
Winfield’s definition. While this definition is more informative, this is still far from
perfect.

E. CONSTITUENTS OF TORT
The three main essential constituents of tort
are: Wrongful act, Legal Damage and Legal
remedy 1) WRONGFUL ACT:
a) The first essential ingredient constituting a tort is that a person must have
committed a wrongful act. This refers to an act of commission, or, omission
that is, 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. This is
‘wrongful’ because, there must have been a breach of duty which has been
fixed by law itself.
 b) If a person does not observe that duty like a reasonable and prudent person, or,
breaks it either intentionally, or, unintentionally, he is deemed to have
committed a wrongful act. In tort, “intention” on the part of wrongdoer,
usually has no role, except in cases like malicious prosecution.
c) In order to make a person liable for a tort he must have done some legal wrong
that violates the legal right of another person, for example, violation of right
to property, right of bodily safety, right of good reputation etc., A wrongful
act may be positive act or an omission which can be committed by a person
either negligently or intentionally or even by committing a breach of strict
duty for example, driving a vehicle at an excessive speed.
d) More often than not, ‘unintentional acts of wrong arise out of acts of
‘negligence’. In the usual sense, ‘negligence’ denotes carelessness. But, in the
legal sense, it denotes, “a legal duty owed and neglected”. In other words, the
test for ‘wrongful act’ is the breach of duty by a person and its consequences
on another.
e) The wrongful act or a wrongful omission must be the one recognized by law.
If there is a mere moral or social wrong, there cannot be a liability for the
same. For example, if somebody fails to help a starving man or save a
drowning child. But, where legal duty to perform is involved and the same is
not performed it would amount to wrongful act.
f) TheIn Municipal Corporation of Delhi v Subhagwanti [ AIR 1966 SC
1750] where the Municipal Corporation, having ownership and control of a
clock tower in the heart of the city, does not keep it in proper repairs and the
failure to do of the same results in the death of number of persons, the
Corporation would be liable for its omission to take care.
g) Similarly, failure to provide safe system would, also amount to omission,
[General Cleaning Contractors v Christmas [ (1953) A.C 180]

2) LEGAL DAMAGE:
a) The second important ingredient in constituting a tort is legal damage. In order
to prove an action for tort, the plaintiff has to prove that there was a wrongful
act, an act or omission by the defendant which through its breach of a legal
duty led to r the violation of a legal right vested in the plaintiff. So, there must
be violation of a legal right of a person and, if it is not, there can be no action
under law of torts.
b) Legal Rights of a person denotes a capacity residing in one person of
controlling the actions of others with the assent and assistance of the state to
ensure a harmonious living as a member of the society. They are those rights
conferred by the State on all its citizens. There are two types of Legal rights,
viz, public rights and Private rights.
 c) Public rights are those which belong in common to all members of the state.
Example:
Public peace, Public safety etc.,

d) Private rights are vested in persons in general by virtue of law. It can be

further divided into two types, namely,.
i. Right in Personum is a right which one person can enforce on another
specific person. Example : Rights of parties to a Contract
ii. Right in rem is a private right that a person is entitled to against the
society as a whole, and is not limited to against any specific person.
Example: Right to property, Right to reputation, Right to etc.,
e) Wherever, there is a legal right bestowed by the law on any person, there are
corresponding legal duties mandated on others by the very same law not to
violate the rights. In some specific circumstances, there may be exceptions
permissible by law such as trespassing by a police officer on duty for
justifiable reasons and so on.
f) So wherever there is an infringement of a private legal right, there arises a
possibility of a damage, which includes not only monetary loss, but also loss
due to and arising from physical injury, health, nervous shock, loss of
comfort, and loss to property.
Case Law: In Ashby v White (1703) 2 Ld. Raym. 938 a returning officer was
held liable in damages for wrongfully refusing to take the plaitiff’s vote at an
election.

g) So wherever there is an infringement of a private legal right, there arises a

possibility of a damage. This is best explained by the latin maxim “Ubi jus
ibi remedium”, meaning - Where there is a damage, there must be a remedy..

3) LEGAL REMEDY:
a) The third essential element is that the wrongful act that resulted in injury
should give rise to a legal remedy.
b) A tort is a civil injury arising from a wrongful act. All civil injuries are not
torts. It is therefore necessary that the wrongful act must come under the
category of wrongs for which the remedy is a civil action.
c) The principal remedy for tort is damages. Usually the court awards monetary
compensation. Since the damages are unknown at the time of the event of
tortious act
of commission or omission, the damages are referred as unliquidated damages
which are decided by the court based on facts and merits of a particular case.
d) The different kinds of damages that are awarded by courts are as under:
 i. Contemptuous damages or derisory damages: These damages are
awarded when the plaintiff moves the court on a technical legal ground
without moral justification. The courts express their disapproval of such
conduct by awarding a very low damages, of say, Rs. 1/=, or, even in
paise.
ii. Nominal Damages: The damages awarded in cases where there is injury
without a loss, say the act of trespassing. Here a token amount, or,
nominal amount is awarded. In Ashby v White £5 was awarded as
damages, which is nominal. Usually in all cases of Injuria sine damnun
nominal damages are awarded. iii. Ordinary damages or
Compensatory damages: When damages are awarded to the extent of
losses suffered by plaintiff, as a monetary compensation, these are called
ordinary, or, compensatory damages.
While arriving at the amount of compensation, courts will regard not
only the pecuniary losses suffered, but also, the social disadvantage
resulting from the wrong, mental pain and suffering, etc.,

iv. Aggravated Damages: The court at its discretion, tends to increase the
compensation when it finds the manner of commission of tort when it is
intentional, and with malice. Such increased compensation is called
aggravated damages. However, this is not to be confused with
exemplary damages.
v. Exemplary damages or Punitive Damages: Sometimes, the gravity of
offence may be so severe, that the court may choose to set out an
example to others as a warning. In such cases the damages awarded are
disproportionately high . These are called exemplary damages, since, the
aim here is not just to compensate the victim, but to create a ‘deterrent’
for future offenders.
In Bhim Sigh v State of J&K, AIR 1986 SC 494, the Supreme Court
awarded a damage of Rs 50,000/= as exemplary damages.

e) Besides monetary compensation there are other remedies such as self-help,

injunction and specific restitution are also available.
Self-help is a remedy which the injured party himself can avail without going to a court of
law. It does not apply to all cases, and can be of use in some specific cases such as trespass.

. LEGAL MAXIM - Ubi Jus Ibi Remedium:

1. The law of torts is said to be a development of the maxim ubi jus ibi remedium (which
means “where there is a right there must be a remedy”).
2. Jus signifies the ‘legal authority to do or to demand something’; and remedium may
be defined to be the right of action, or the means given by law, for the recovery or
assertion of a right.
 3. The maxim does not mean, as it is sometimes supposed, that there is a legal remedy
for every moral or political wrong. The maxim means only that legal wrong and legal
remedy are correlative terms; and it would be more intelligibly and correctly stated, if
it were reversed, so as to stand, “where there is no legal remedy, there is no legal
wrong.” Again, speaking generally, there is in law no right without a remedy; and, if
all remedies for enforcing a right are gone, the right has from practical point of view
ceased to exist. The correct principle is that wherever a man has right the law should
provide a remedy and the absence of a remedy is evidence but is not conclusive that
no right exists.
4. Caselaws:

a) Ashby v White, (1703) 2 Lord Raym 938. In this leading case, the
defendant, a returning officer, wrongfully refused to register a duly tendered vote
of the plaintiff, a legally qualified voter, at a parliamentary election and the
candidate for whom the vote was tendered was elected, and no loss was suffered
by the rejection of the vote, nevertheless Holt, C.J, while holding that action
lay, said “If a man has a right, he must of necessity have a means to vindicate
and maintain it and a remedy if 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.”
In this case the returning officer has acted maliciously and was held liable.

G. FOUNDATIONS OF TORTIOUS LIABILITY – 2 Theories

1) Theory – 1 : ‘Wider and narrower’ theory, or, “Growing Tree”

Theory a) This theory is supported by Winfield, Pollock and other
eminent jurists.

According to this theory, all injuries done to another person are torts unless there is
justifications recognised by law. The underlying principle here is that all unjustifiable harms
are torts. It may be assault, battery, deceit, slander, negligence, or, it may not even have a
name at all. When a tort is specific, it is narrowed down to a particular wrong. But when it is
not specific, and considered at a wider level that all harms without legal justifications are
torts, then, it is in a wider sense. This approach allows
b) the field of tort to expand to accommodate newer torts as the society develops.
It is akin to a ‘growing tree’ with several branches, each representing an
existing or known tort and at the same time with new branches in the process
of growing which can represent a new tort under development.
c) This analogy reflects that attitude of courts when they attempt to create new
torts depending on the type of harm and need. Thus tort is like a ‘growing tree’

2) Theory – 2: “Pigeon Hole Theory

a) This theory is supported by Salmond, Glanville Williams and others.
 b) According to Pigeon Hole Theory, there are definite number of Torts , outside
which liability in Tort does not arise.
c) Here, the law of Torts consist of a ‘net-set’ of pigeon holes, each containing a
specific tort such as assault, battery, deceit, slander, negligence, etc., If the
defendant’s wrong does not fit in any of these pigeon holes, then he has
committed ‘no tort’.
d) Critics argue that this is a restrictive theory. But Glanville William says that
pigeon holes can be copious as well as multipliable / expandable.

3) Conclusion:
a) Both the above theories are correct in the sense that they are from different
points of view While one seems to be a broader perspective the other signifies
a narrower approach. After all, tort has grown over the years giving rise to new
areas of torts such as strict liability, absolute liability and so on. In the last few
decades, new branches of laws like consumer protection laws, defamation
laws and the like, are in place. Whether these can be seen as new branches of
a growing tree, or new array of pigeon holes, both approaches can be
accommodated as valid points of view.
b) In Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1, Justice
Sahai., observed, “Truly speaking the entire law of torts is founded and
structured on morality. Therefore, it would be primitive to close strictly or
close finally the ever expanding and growing horizon of tortuous liability.
Even for social development, orderly growth of the society and cultural
refineness, the liberal approach to tortious liability by court would be
conducive.
c) In Lala Punnalal v Kasthurichand Ramaji, it was pointed out that there is
nothing like an exhaustive classification of torts beyond which courts should
not proceed, that new invasion of rights devised by human ingenuity might
give rise to new classes of torts.
1. Motive: Refers to an inner drive that signifies the reason for a person’s conduct.

2. Intention: Motive leads to formation of intention, which is the subsequent cause.

Intention signifies full advertence in the mind of a person to his conduct, which is in
question, and to its consequences together with desire for those consequences.

3. Malice: When an act is done with bad intention, it is called ‘malice’.

a) Malice – in - Fact: Refers to performance of an act which may be legal, but

with ill-will, or hatred, or bad intention. Malice in Fact is generally relevant in
some specific torts such as Defamation, malicious prosecution, deceit and
conspiracy.
 For example, in an action of defamation, if the defendant pleads qualified
privilege, the plaintiff can defeat him by proving malice – in - fact

b) Malice – in - Law: Refers to a wrongful act done intentionally, without just

cause or legal excuse.

4. Malfeasance: Commission of illegal / wrongful act:

Example:- trespass, - which are actionable per se and do not require proof of
intention or motive. It amounts to doing an act that is ought not to be done.

5. Misfeasance: Refers to improper performance of a lawful act.

Example: – Negligence. Here neither intention, nor, motive is material.

6. Non-feasance: Refers to Failure to an act which one is legally obliged to do. In other
words it denotes an act of Omission.

7. Fault: Refers to a mistake, or negligence that leads to injury to someone, who has a
right of action in a court of law against the tort-feaser.
Normally tort arises due to a fault. But there are situations where there is no fault -
wherein, an injury happens even when the person has acted without negligence, and or
mistake. These are cases involving strict liability, absolute liability and vicarious
liability. In all such cases too, he will become liable.
Case Law :
Rylands v Fletcher, 1868 LR 3 (HL) 330 - Strict liability
M.C. Mehta v Union of India AIR 1987 SC 1086 - Absolute liability
State of Rajasthan v Vidyawati, AIR 1962 SC 933 - Vicarious liability