UNIT 1- NATURE OF TORT :

i. Definition, Nature and Scope of Tort

ii. Distinction between tort, crime and contract.

Among The Following Questions Asked By The University From This

Chapter In All Previous Exams
• Define Tort. Discuss the nature and important characteristics of tort. /
• Define tort. Discuss the distinction between tort ,and breach of
contract./
• Define tort. Distinguish between Tort ,and Contract. /
• Define “tort” and explain how it differs from a breach of contract. /
• Define tort. Distinction tort from crime and breach of contract. /
• Define the cocepts of tort and distinguish it with crime . /
• Explain tortious liability and distinguish it from breach of contract /
• What is tort? Discuss the essential elements of tortious liability. /
• Difine tort. What are the constituent elements of tort ? Elaborate. /
• Define “tort”. Discuss the nature , scope and object of the law of Torts. /
• Explain and define the concept of “Tort” . Discuss its nature and scope.
/

INTRODUCTION
The law of tort is a branch of Civil Law, which consists of various
torts or wrongful acts which violate some legal rights vested in a person by
law.

The word “tort” is derived from the Latin word tortum which
means twisted or crooked or wrong or unlawful. The law imposes a duty
to respect the legal rights of others, and the person making a breach of that
duty is said to have done the wrongful act. Similarly, tort is a breach of
duty recognized under the law of torts.

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 Law of tort is mainly built upon case laws. It is said to be a stately
edifice of case laws.

There are only a few statutory enactments related to this branch of law.

Definition
The law of tort has been difficult to be defined and there is no scientific
definition of law of tort. This is mainly because of the diverse species of
wrongs included under this head.
A number of attempts have been made to define the law of tort. Some
of the most appropriate definitions are:-
(1) “Tort means a civil wrong which is not exclusively a breach of contract

or breach of trust” – Sec.2 (m), The Limitation Act, 1963.

(2) “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.”
– Salmond.
(3) “Tortious Liability arises from the breach of a duty primarily fixed by

the law: this duty is towards persons generally and its breach is
redressible by an action for unliquidated damages.” – Winfield.
(4) “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.” – Fraser.

Generally, tort is defined as – It is a civil wrong which is redressible by
an action for unliquidated damages, and which is other than a mere breach of
contract or breach of trust.
The definition emphasizes, three aspects of tort:-
(a) Tort is a civil wrong and

(b) Remedy available is unliquidated damages and

(c) Differentiates tort from other civil wrongs.

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a) TORT IS A CIVIL WRONG

In case of infringement of a legal right which amounts to a civil

wrong, the plaintiff institutes civil proceedings against the wrongdoer, i.e.
the defendant.

The main remedy available in such proceedings is damages. The

plaintiff is compensated by the defendant for the injury caused to him by
the defendant.

In certain circumstances, it is possible that the same act done by a

person may result in two wrongs, a crime as well as a tort, at the same time.
Assault, libel and theft are instances of such common wrongs. When a
person has committed an act of theft, he may be prosecuted criminally and
a civil action for the recovery of the value of the article stolen and for
damages can also be taken against him. So also in the wrong of defamation.
If a person has published a defamatory article about another in a
newspaper, both a criminal prosecution for libel and civil action claiming
damages for the defamatory publication may be taken against him.

In such a case, both the civil and criminal remedies would concurrently be
available. There would be a civil action requiring the defendant to pay
compensation as well as a criminal action awarding punishment to the
wrongdoer.

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b) REMEDY AVAILABLE IS UNLIQUIDATED DAMAGES:-

Damages in the case of a tort are unliquidated, i.e. the compensation

to be paid is not predetermined on the basis of prior stipulation of the
parties, and such determination of damages is left to the discretion of the
court.

In liquidated damages, as in case of breach of contract, the

compensation to be paid in damages are previously determined or agreed
to by the parties on the basis of stipulation of probable loss in case of breach
of contract.

In tort, there is no predetermination of compensation, between the

parties, because generally the parties are not known to each other until the
tort is committed and moreover it is also difficult to stipulate the losses in
case of a tort, and, therefore, the damages to be paid are left to be
determined at the discretion of the court.

Unliquidated damages to be paid in monetary value is most suitable,

because after the commission of the wrong, it is generally not possible to
undo the harm which has already been caused, so the remedy that can be
done is to put the person who has been injured in the same position, as he
would have been in, if he had not sustained the wrong. This would
generally satisfy the injured party.

Other remedies available for a tort are (a) injunction in case where the
wrong is a continuing act, such as in case of nuisance, (b) specific
restitution etc.

c) ALL CIVIL INJURIES ARE NOT TORTS :-

Illustrate few cases where same act amounts to two or more civil wrongs.

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 Although a tort is essentially a civil injury, all civil injuries are not
torts. Whether a civil wrong is a tort or not has to be determined through
process of elimination. If a civil wrong does not fall in any other civil
wrong category, it probably would be a tort.

In certain circumstances, the same act may amount to two or more

civil wrongs, one of which may be a tort.

For example – If X leaves his car with Y for safe custody for a few days
and Y leaves the car unlocked on the road to be stolen, Y’s act amounts to
two wrongs – Breach of contract of bailment and the commission of tort of
negligence.

Since both the wrongs are civil wrongs, and damages is the main remedy
for any kind of civil wrongs, the plaintiff can claim damages either under
the law of tort for negligence, or for the breach of contract of bailment.

He cannot claim damages twice.

NATURE OF TORTS

A tort is a civil wrong that causes harm or loss to an individual, leading to

legal liability for the person who commits the tort. The key elements of a tort
include the infringement of a legal right, a duty of care that has been breached,
and resulting harm or damage. Torts are distinct from criminal acts, although
some actions can be both a tort and a crime. The primary purpose of tort law is to
provide relief to the injured party and to deter others from committing similar
wrongs.

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SCOPE OF TORTS

The scope of tort law is broad, encompassing various types of wrongs.

These include intentional torts (like assault or defamation), negligence (failing
to exercise reasonable care, leading to harm), and strict liability (where a person
is held liable regardless of fault, often in cases involving dangerous activities).
Tort law covers a wide range of activities in everyday life.

ESSENTIAL OF TORTS

ESSENTIAL OF TORTS

Act or omission Legal Damages Legal Remedy

Injuria sine damno Damnum sine injuria

Ashby. V White Gloucester

GrammerBhim Singh V. State of J & K School Case

a. Act or Omission
A person liable for a tort, 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. Either a positive wrongful act or an omission
which is illegally made will make a person liable.
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 For example, A commits the act of trespass or publishes a statement
defaming another person, or wrongfully detains another person, he
can be made liable for trespass, defamation or false imprisonment,
when there is a legal duty to do some act and a person fails to perform
that duty, he can be made liable for such omission. For example, if a
corporation, which maintains a public park, fails to put proper
fencing to keep the children away from a poisonous tree and a child
plucks and eats the fruits of the poisonous tree and dies, the
Corporation would be liable for such omission.

The wrongful act or a wrongful omission must be 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, it is only a moral wrong and, therefore, no liability
can arise for that unless it can be proved that there was a legal duty
to help the starving man or save the drowning child.

b. Legal Damage -
In order to be successful in an action for tort, the plaintiff has to prove
that there has been a legal damage caused to him. It has got to be
proved that there was a wrongful act-an act or omission- causing
breach of a legal duty or the violation of a legal right vested in the
plaintiff. Unless there has been violation of a legal right, there can be
no action under law of torts. If there has been violation of a legal right,

Injuria Sine Damno

• Injuria - Legal injury (not ordinary injury)

• Sine -Without
• Damnum - Damage

Injuria sine damno means violation of a legal right without

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 causing any ham loss or damage to the plaintiff.

There are two kinds of torts.

Firstly, those torts which are actionable per se, i.e., actionable without
the proof of any damage or loss. For instance, trespass to land is
actionable even though no damage has been caused' as a result of the
trespass.

Secondly, the torts which are actionable only on the proof of some
damage caused by an act.Injuria sine damno covers the first of the above
stated cases. There is no need to prove that as a consequence of an act, the
plaintiff has suffered any harm. For a successful action, the only thing
which has to be proved is that the plaintiff's legal right has been violated,
i.e., there is injuria.

Ashby V. White (1703) I.E.R. 417 It is a leading case explaining the

maxim “injuria sine Damnum” The plaintiff was a qualified voter at
a Parliamentary election. The defendant was a returning officer. The
defendant wrong fully refused to take Plaintiff‟s vote. The candidate
to whom the plaintiff wanted to vote won in the election. There was
no actual damage suffered by the Plaintiff. The plaintiff sued the
defendant alleging that the defendant did a wrongful act by
restraining him not to vote.

Judgment. The court held that – If the plaintiff has a right, he must
of necessity have a means to vindicate and maintain it, and a remedy,
if he is injured in the exercise of enjoyment of it; and indeed, it is a

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 vain thing to imaging a right without a remedy; for want of right and
want of remedy are reciprocal.”

In Bhim Singh v. State of J. & K (AIR 1986 SC 494) the

petitioner, an M.L.A. of J & K. Assembly, was wrongfully
detained by the police while he was going to attend the Assembly
session. He was not produced before the Magistrate within
requisite period. As a consequence of this, the member was
deprived of his constitutional right to attend the Assembly
session. There was also violation of fundamental right to personal
liberty guaranteed under Article 21 of the Constitution. By the time
the petition was decided by the Supreme Court, Bhim Singh had been
released, but by way of consequential relief, exemplary damages
amounting to Rs. 50,000 were awarded to him.

Damnum Sine injuria

• Damnum – Damage
• Sine – without
• Injuria – Legal injury (not ordinary injury)

Damnum sine injuria

The maxim ―damnum sine injuria means damage or loss without
infringement of legal private right in rem.and no action lies for mere
damage or loss , however substantial ,caused by an act which does
not infringe some legal right of the plaintiff
.According to salmond ―There are many acts which though harmful
are not wrongful and give no right of action to him Who suffers their
effects ―The person Who suffers the harm cannot have the remedy in

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the court of law because the exercise of a legal right by one person
resulted in damages to the other ,without violation of his right.

Gloucester Grammar School Case (1410 Y.B. Hill 11)

The plaintiff was maintaining a School. They charged 40 pence per

student per quarter. The defendants established a rival school near
to the plaintiff‟s school. Due to the competition, the defendants
reduced the fee from 40 pence to 12 pence per student. It caused a
considerable loss to the Plaintiff. They used the defendants. The
court held that Danmum may be abseque illjuria, as if I have a .mill
and my neighbour builds another mill whereby the profit of my mill is
diminished, I shall have no action against him, although I am
damaged..... But if a miller disturbs the water from going to my mill,
or does any nuisance of the like sort, if shall have such action as the
law gives.

In Chesmore v. Richards(1859)7 HCL 349 )the plaintiff, a mill

owner, was for the past 60 years, using water for his mill from a
stream which was fed by rainfall percolating through underground
strata to the stream, but not flowing in defined channels. The
defendants sunk a well on their land and pumped large quantities of
water, which would otherwise have gone to the plaintiff's stream,
thereby causing losses to the plaintiff. The defendants were held not
liable.

In Ushaben v.Bhagyalaxmi Chitra Mandir (AIR 1978 Guj .13).the

sued for plaintiff a permanent injuction to restrain the defendants
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 from exhibiting the film named “jai santoshi maa”It was argued that
the film hurt the religious feeling of the plaintiff so far as goddesses
Saraswati and Laxmi were depicted as jealous and were ridiculed. It
was held that hurting religious feeling had not been recognized as
a legal wrong.since there was no violation of a legal right request of
injunction was turned down.

c. Legal Remedy
In tort, the wrongful act must come under the category of wrongs for
which the remedy is a civil action for damages. Legal remedy is the third
essential for an action in tort. A tort is a civil injury, but all civil injuries are
not torts. The essential remedy for a tort is an action for damages but there
are other remedies also for example injunction may be obtained in addition
to damages in certain cases of wrongs or an action by the plaintiff himself
without going to the court i.e. self-help

Tort Can Be Summarised As Follows:

Wrongful act + Legal damage + Legal remedy Tort

(there must be at least 1 out of 4

(a breach of legal duty) (infringement of remedies recognised by law i.e.
private legal damages, injunction, specific
restitution of property and self
right of another help.)
person)

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DIFFERENCE BETWEEN TORTS AND CRIME

TORTS CRIME

I. A tort is a kind of civil wrong which I. A crime is an offence against state

Gives rise to a civil proceeding which Gives rise to a criminal
Proceeding

II. In a tort, the plaintiff is the injured II. In a crime, the state is the injured
party party.

III. A tort is a Violation of the privateRight III. A crime is a breach of public right
of an individual considered as an which affects the whole community.
individual.

IV. In a tort the injured party is awarded IV. In a crime the wrongdoer is punished.
compensation or damages

V. In torts the purpose of awarding V. In a crime the purpose of criminal law

compensation to the injured party is is to protect the society bypreventing
to make good the loss suffered by him the offender from committing further
offence

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Difference between Torts and breach of contract

Torts Breach of Contracts

I. In a tort the duties are imposed by I. In a contract the parties, with their
law free consent undertake to perform
certain duties
II. A torts is violation of a right in rem II. A breach of contract is a violation ofa
i:e right exercisable against the right in personam i:e rightexercisable
whole world against a definite person or persons

III. In case of a torts the suit is for III. In a breach of contract the
unliquidated damages suit is for liquidated damages
IV. There is no privity in a torts because IV. In a contract there must always exist
it is always inflicted against the privity between the parties that is a
will of the parties binding legal tie between them
injured
V. In tort a man is held liable for V. If there are special circumstances under
damages arising from special which a contract was made and they
circumstances of which he has no were wholly unknown to the parties
knowledge. breaking the contract, he isnot liable
for damages solely to those
circumstances.

CONCLUSION

The law of torts is about addressing wrongs that one person causes to
another. It focuses on compensating victims for harm or loss and ensuring
fairness. Torts can happen in many ways, from intentional acts like assault to
accidents caused by negligence. The scope of tort law is broad, covering various
wrongs in everyday life. The main goal is to restore the injured party to their
original position through remedies like monetary compensation or injunctions to
prevent further harm.

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