Introduction — What is “Law”?
Law: Set of rules of conduct followed by people in society in mutual intercourse and in relation
with the State.
Sources:
Legislation: laws enacted by the legislature.
Precedent: law declared by the judiciary.
Custom: rules voluntarily followed by people.
Conventional laws: rules made by people in their agreements.
Classification:
Civil Law: declares rights/liabilities; enforced by Civil Courts; aims to enforce rights or award
compensation.
Criminal Law: prohibits acts/omissions and prescribes punishments; aims to punish the
wrongdoer.
Law of Torts — Position and Development
A branch of civil law administered by civil courts.
Developed in England through judicial precedents.
In India: not fully developed; Indian courts generally follow English principles but can adapt them
to Indian conditions.
Definition of Tort
Salmond:
“A tort is a civil wrong for which the remedy is an action for damages and which is not
exclusively the breach of contract or breach of trust or breach of merely equitable obligation”.
Fraser:
"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".
Section 2(m), Limitation Act, 1963:
Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.
Winfield:
"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".
Sir Frederick Pollock-
"Every tort is an act or omission (not being merely the breach of a duty arising out of a personal
relation, or undertaken by contract) which is related in one of the following ways to harm
(including reference with an absolute right, whether there be measurable actual damage or not),
suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause
harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes
harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and
treated as wrongful without regard to the actor's intention or knowledge. This, as we have seen
en is is an an artificial extension of of the the general conceptions which are common to English
and Roman law.
d) it may be an act or omission causing harm which the person so acting or omitting to act did
not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was
bound absolutely or within limits, to avoid or prevent
The word 'Tort' has been derived from the Latin term tortum which means to twist.
Etymologically, the word 'tort' signifies a crooked act or a wrongful act
Plaintiff must establish:
Wrongful act or omission by defendant.
Legal damage (violation of right) to plaintiff.
Legal remedy: action for damages (unliquidated).
Essential 1 — Wrongful Act or Omission
Liability only if defendant did what he ought not to do, or omitted what he ought to do under a
duty fixed by law.
Illustrations:
Defamation example (A publishes defamatory statement about B) — wrongful act, tort.
Case laws:
Glasgow Corporation v. Taylor (1922) 1 A.C. 44
Facts: Public park had poisonous tree; inadequate fencing; child ate fruit and died.
Holding: Corporation liable for omission (negligence).
Municipal Corporation of Delhi v. Subhagwanti (AIR 1966 SC 1750)
Facts: Clock Tower under municipal control collapsed; failure to maintain; deaths.
Holding: Corporation liable for omission (negligence) in failing to take due care.
Moral Wrong vs Legal Wrong (No Tort Without Legal Duty)
Moral wrongs not actionable without legal duty:
Failure to help a starving man — no legal duty, no tort.
Swimmer failing to save drowning child — no legal duty, no tort.
Tortious liability may arise only if a legal duty to act is established.
Essential 2 — Legal Damage: Injuria sine damno
Principle: Violation of a legal right is actionable even without actual loss.
Meaning:
Injuria: infringement of a right conferred by law.
Damnum: loss or damage.
Injuria sine damno: violation of legal right without harm/loss/damage.
Case laws:
Ashby v. White [(1703) 2 Lord Raym 938](Aylesbury Election Case)
Facts: Qualified voter prevented from voting; candidate still won.
Holding: Nominal damages awarded; right violated.
Bhim Singh v. State of J&K (AIR 1968 S.C 494)
Facts: MLA wrongfully detained; not produced before Magistrate within 24 hours; deprived of
constitutional and fundamental rights.
Holding: Rs. 50,000 awarded as consequential relief.
Essential 2 — Legal Damage: Damnum sine injuria
Principle: Damage/loss without violation of legal right is not actionable.
Case laws:
Gloucester Grammar School case (1410) Y.B. Hill 11 Hen
Facts: Defendant opened rival school; plaintiff lost students and income.
Holding: No cause of action; competition lawful; no right violated.
Mogul Steamship Co. v. Gregor Gow and Co. (1892) A.C. 25
Facts: Defendants combined to reduce freight; plaintiff suffered heavy loss.
Holding: No liability; no right violated; economic loss alone insufficient.
Mayor of Bradford Corporation v. Pickles (1895) A.C 587
Facts: Defendant dug on own land to impound underground water, preventing supply to
Corporation’s wells; motive was coercion.
Holding: Exercising lawful right; malice immaterial; no violation of right; no tort.
Essential 3 — Remedy by Way of Unliquidated Damages
Primary remedy: action for unliquidated damages (court assesses compensation).
Other remedies (e.g., injunction) are additional; where damages are secondary, the civil wrong is
not a tort.
Topic IV — Relevance of Evil Motive or Malice (General Rule)
General rule: Malice or illwill is irrelevant in tort.
Liability depends on breach of legal duty and violation of legal right; mere malicious motive
without breach does not create liability.
Case illustration:
Mayor of Bradford Corporation v. Pickles (1895) A.C 587
Bad motive immaterial if act is otherwise lawful; action dismissed.
Exceptions Where Malice Is Relevant
Torts requiring malice as an element:
Deceit, conspiracy, malicious prosecution, injurious falsehood.
Defamation:
When qualified privilege or fair comment is pleaded, motive becomes relevant.
Distinction Between Tort and Crime
Nature:
Tort: private wrong; compensation to injured party.
Crime: public wrong; punishment prescribed by law.
Proceedings:
Tort: initiated by aggrieved person.
Crime: normally initiated by State, though victim is individual.
Compromise:
Tort: plaintiff may compromise/withdraw.
Crime: settlement generally not permitted except compoundable offences (CrPC, 1973, s. 320).
Purpose:
Tort: make good the loss.
Crime: protect society; prevent/deter offences.
Survival:
Crime: prosecution ends on accused’s death; no transmission of liability.
Tort: legal representatives can be sued except for defamation, assault, or personal injury not
causing death (Indian Succession Act, 1925, s. 306).
Distinction Between Tort and Breach of Contract
Tort: civil wrong. Contract: agreement enforceable by law.
Source of duty:
Tort: duty imposed by law; owed to persons generally (duty in rem).
Contract: selfimposed duty from agreement; owed to a specific party (duty in personam).
Damages:
Contract: parties may prefix compensation (liquidated damages).
Tort: damages are unliquidated; court assesses what is just.
PigeonHole Theory (Salmond) vs Winfield’s View
Pigeonhole theory (Salmond):
“There is no law of tort; there is only law of torts.”
Liability only if the wrong fits a recognized, labeled tort; no general principle; if no pigeonhole,
no tort.
Winfield’s view:
“All injuries done to another person are torts unless there is some justification recognised by
law.”
Liability even if wrong lacks a special title, unless lawful justification is shown.
Present View
Courts may be reluctant to recognize new torts, but categories are not closed.
Tort can be defined generally without reference to specific torts.
Conclusion: Pigeonhole theory is unsound.
Recap of Case Laws (for quick reference)
Glasgow Corporation v. Taylor (1922) 1 A.C. 44 — Duty to protect children; omission negligence.
Municipal Corporation of Delhi v. Subhagwanti (AIR 1966 SC 1750) — Structural maintenance;
omission negligence.
Ashby v. White [(1703) 2 Lord Raym 938] — Injuria sine damno; nominal damages.
Bhim Singh v. State of J&K (AIR 1968 S.C 494) — Constitutional/fundamental rights;
compensation.
Gloucester Grammar School (1410) Y.B. Hill 11 Hen — Lawful competition; damnum sine injuria.
Mogul Steamship Co. v. Gregor Gow and Co. (1892) A.C. 25 — Competitive pricing; no right
violated.
Mayor of Bradford Corporation v. Pickles (1895) A.C 587 — Lawful act; malice immaterial.