Abstract

In every law class, the most significant topic that is being taught to law students is the Law of Tort. By the term ‘Tort’, we mean a civil wrong. In other words, any harm or damage caused by a person to another person, who in turn have recourse to legal remedies of injunction, compensation, etc. There are various definition given by eminent scholars which has been discussed in the below study. Along with it, other fundamentals of tort like, Injuria sine Damnum, Damnum sine Injuria, Strict, absolute and vicarious liability and the journey of law of tort since it’s origin in England and application in India, has also been discussed. The objective of the study is to introduce and help the readers to understand these concepts in an undemanding way.

Introduction

The term ‘Tort’ is a French word and has been derived from the Latin term ‘Tortum’, which means a wrong or injury. Generally, tort is a civil wrong, and means something which is twisted or crooked.

In law, a tort is defined as a civil wrong or wrongful act of one, either intentional or accidental, that results in the injury or harm to another person, who in turn has recourse to civil remedies for damages or a court order or injunction.

A tort basically arises when a person’s duty towards is affected. And a person who commits the tort is known as a ‘tortfeasor’. But when it us jointly performed by multiple individuals; they are called ‘Joint Tortfeasors’. Section 2(m) of the Limitation Act, 1963, states that it is not just exclusively a breach of contract or breach of trust.

Definition of Tort by different Scholars

Salmond defines it as ‘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.’

Fraser describes it as “an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party.”

Winfield opined that “Tortious liability arises from the breach of duty, primarily fixed by law, this duty is towards persons generally and its breach is redressable by an action for unliquidated damages”.

What constitute a tort?

Wrongful Act: It means there must be some kind of act or omission of duty on the part of the defendant or wrongdoer. He must have done something that he was not expected to do or he omitted something which he was expected to do. And that act or omission must have affected the legal right (i.e. Right of reputation or Right of bodily safety and freedom, etc.) of another person.

Legal Damage: It means that the act or omission must be required by the law and the duty to perform them must be imposed by the law. If there is a mere social or moral wrong, then there would be no liability for tort. In other words, there should be a legal injury or invasion of the legal right. In the absence of an infringement of a legal right, a tort dose not arises. Also, where there is only an infringement of a legal right, and no legal damage, still the action of tort arises. As in the case of Ashby Vs. White, where the Plaintiff was stopped from casting his vote by the defendant, a returning offer. However, the cancellation did not affect the election but it affected the legal right of the plaintiff causing legal injury to him, so he would be entitled to sue the defendant for the tort committed.

Legal Damage: The third condition of liability for a tort is legal remedy. This means that to constitute a tort, the wrongful act must come under the law. The main remedy for a tort is an action for unliquidated damages, although some other remedies, e.g., injunction, may be obtained in addition to damages or specific restitution may be claimed in an action for the detention of a chattel.

Unliquidated damages are those which are not fixed or previously defined, which relies on the discretion of the court.

Is it Law of Tort or Law of Torts?

There are two theories in this question. One is given by Winfield and the other is given by Salmond.

According to Winfield, it is Law of Tort, he states that all the injuries done to another person are torts, unless there is some justification by the law (all unjustifiable harms are torts). His theory was supported by many eminent scholars with the principle of Ubi Jus Ibi Remedium (where there is wrong, there is a remedy), providing that torts are not confined or limited but are various.

According to Salomon, it is Law of Torts, he states that there is no general principle of liability and it only arises when the wrong is covered by any of the specified tort. Also known as Pigeon hole theory. His supporters argued that according to Salmond, the courts can create new torts but they cannot create them unless they are similar to those already in existence.

It can be seen that both the theories are not in complete contradiction with each other but are the faces of same coin. The slightest difference is that Winfield’s theory was wider and Salmond’s theory was narrower and restricted. It is just only about the matter of approach.

Development of Law of Tort in India

The Origin of law of Torts could be traced from the following three maxims:

Alterium non-laedere (not to hurt anyone by words or deeds)
Honesty Vivere (to live honourably)
Suum clique tribuere (to provide justice to each person)

The law of torts has its origin in England but is followed in the US, British commonwealth nations and India. Previously, in the US, the law used to deal with the minor cases, like that of accidents. But now seeing the diversity in the cases, the jurists and lawyers decided to further develop the law of torts.

The English Law of Torts has a lot of dominance over the Indian law of tort, which was modified as per the requirement of the Indian society. The ancient Hindu Law consisted of a Sanskrit word, ‘Jimha’ which meant equivalent to the tortious conduct.

In the earlier times the Britishers found it difficult to administer Indians, so they decided to an Indian Tort Law, to avoid chaotic situation.

Tort is basically a common law subject as it is not based on any statute or act passed by the parliament, but is based on the precedents, the centuries of judicial decisions. Like in India, both contract and criminal law are based on the statutes like Indian Contract Act, 1872 and IPC, 1860, respectively. But there are no specific statutes that deal with the tort law. So, a tort lawyer would have to look for rules as developed by courts in similar cases.

However, with the development, India has developed certain tort laws, like Motor Vehicles Act, 1988 to deal with automobile accidents and also Consumer Protection Act, 1986 to protect the interests of the consumers. Still most of the tort law is uncodified and is based on the Common law of England. At times when the common law is silent, the courts apply principles of Equity, Justice and Good Conscience.

Also, in the landmark case of M.C. Mehta Vs. UOI, Justice P.N. Bhagwati observed the importance of having one’s own law and how it helps for further development and growth of the nation, rather than relying on the ancient law of England.

Tortious Liability and the mental element

Tort is civil in nature and arises when a person causes injury to another person’s reputation, life, etc., here the intention with which the injury is caused is may or may not be fundamental. In law of torts, it is not necessary to note whether it was intentionally or accidentally, the liability arises either way.

However, it is significant to know that mental element dose not plays a great role in determining the tortious liability, because there are certain torts that can be committed without having any intention, like Tort of Negligence.

On the basis of Intention there are two types of torts:

Intentional Tort: An intentional tort requires the claimant to show that the defendant caused the injury on purpose and that he/she has suffered certain injury because of the defendant’s action. The concept of Mala Fide intention is necessary to commit an intentional tort. It includes:
Battery
Assault
False Imprisonment
Trespass to land and chattels.
Unintentional Tort: The best example can be of Negligence. These are caused mistakenly or accidentally, without any mala fide intention. Here the claimant needs to establish three elements:

Duty of Care

Breach of Duty of Care

Harm to the Claimant.

The theories related to intention can be either Objective or Subjective. The first states that, the liability of tort arises irrespective of mental state of the defendant. In case of Wilkinson Vs. Downtown, although the defendant just made a joke about plaintiff’s husband’s health, due to which she got nervous shock, but the court held the defendant liable under tort, even though she did not have any intention to do so.

In contradiction to the first, the second theory states that the mental state of the wrongdoer is essential in determining the appropriateness of the liability. It requires to punish the wrongdoer for having the intention or knowledge while committing the wrong.

Distinction between Law of Tort and Law of Crime

Law of Tort	Law of Crime
A tort is a private wrong, an infringement of a private right of a person.	A Crime is a public wrong, is against the whole world or public at large.
The remedy is Unliquidated damages.	The remedy is liquidated damages.
In case of a tort, the suit is filed by the victim, himself.	In case of a crime, the complaint is filed by the state.
Law of Tort is an uncodified law.	Law of Crime is a codified law.
The mental element is significant but not in all cases.	The mental element is the crux in all the cases.
It is a right in Rem.	It is a right in persona.
The person who commits the tort is a tortfeasor.	The person who commits a crime is the offender.
Tort is a compoundable offence.	Crime is not a compoundable offence, except in certain cases.

Distinction between Law of Tort and Law of Contract

Law of Tort	Law of Contract
The duty is fixed by the court of law.	The duty is fixed by the parties to the contract.
Motive is taken into account.	Motive is usually irrelevant.
The duty is towards the whole society.	The duty is towards specific individuals only.
Damages are unliquidated.	Damages are liquidated.
Provides unlimited remedy.	Provides limited remedy.
Consent is immaterial.	Consent is essential.

Distinction between Law of Tort and Breach of Trust

Law of Tort	Breach of Trust
The damages are unliquidated.	The damages are liquidated.
It is a part of common law.	It could be redressed in the Court of Chancery.
It is not the division of law of property.	It is the division of law of property.

Distinction between Law of Tort and Quasi-Contract

Law of Tort	Quasi-Contract
Damages are unliquidated.	Damages are liquidated.
It is a duty fixed by court of law.	It is an obligation imposed by the court of law.
The duty is towards the whole society.	The obligation is towards a particular person.

Distinction between Law of Contract and Law of Crime

Law of Contract	Law of Crime
It is a right in Rem	It is a right in Persona.
The duty is towards only a particular individual.	The duty is toward the whole society.
Consent is material.	Consent is not material.
The objective is to protect the right of the parties to a contract.	The objective eis to ensure peace and harmony in the society.
It comes under the ambit of Civil Law.	It comes under the ambit of Criminal Law.
Mens Rea is relevant.	Mens Rea is irrelevant.

Distinction between Law of Contract and Quasi-Contract

Law of Contract	Quasi-Contract
There is an agreement between the parties.	There is not a specific agreement as it is just a constructive contract.
Consent is material.	Consent is immaterial.
It is right in Rem.	It is right in Persona.
Liabilities exist as per the terms of the contract between the parties.	Liability exist irrespective of the terms and is based on equity, justice and good conscience.

Constituents of law of Tort

Injuria sine Damnum: The meaning of the maxim is Injury without damage. It means violation of a legal right but no harm caused. When there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff’s action will succeed even if there is no Damnum or damages. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage. Injuria sine damnum covers such cases where the right is violated even though no damage has occurred. Thus, the act of trespassing upon another’s land is actionable even though it has not caused the plaintiff even the slightest harm or damage.

The same thing was cited in the case of Ashby Vs. White, where the plaintiff, being a qualified voter, was stopped from casting the vote by the defendant, a returning officer. Though the cancellation did not affect the election and did no damage to the plaintiff but it was the breach of his legal right.

In another case of Bhim Singh Vs. State of J&K, where the plaintiff, MLA Bhim Singh, was wrongfully arrested and detained by the police and was also prevented from attending the session of the legislative assembly. As a voting session was going on in the session, his vote was significant. Even though the person to whom he wanted to vote for, eventually won, causing no damage to him, but his legal right to vote was infringed. Thus, he was entitled to reasonable compensation.

Marzetti Vs. Williams Bank was a case where the defendant bank refused to accept the cheque of the plaintiff even though he had sufficient fund in the account. It was held that such practices violated his legal right and he would be entitled to get compensation.

In the case of Asharfilal Vs. Municipal Corporation of Agra, the plaintiff, Asharfilal’s name was wrongfully deleted from the voters list by the concerned authorities, because of that the plaintiff could not caste his vote, which violated his fundamental right to vote. Thus, he was entitled to get compensation.

Damnum Sine Injuria: It means Damages without injury. It includes damages in which there is no infringement of the legal right. Since in cases where there is no infringement of legal right is involved, so no action lies. The basic principle of this maxim is that if a person exercises his ordinary rights without violating other’s legal right, but any damage is caused to that other person in the form of loss of money, comfort or health, etc., then no action of tort arises in such type of cases.

An example is the case of Gloucester Grammar School, where a person opened a rival school infront of the plaintiff’s school, which led to the fall in his profits. So, he sued the person, claiming compensation. But the court held that no remedy to the plaintiff for the loss suffered by him, because there was no infringement of legal right.

In another case of Day Vs. Browning, plaintiff’s house was known as Ashfrod Lodge for almost 60 years. Adjoining to it was defendant’s houses which was named as Ashfrod Villa for 40 years, but he renamed it same as that of plaintiff’s house name. So, the Plaintiff sued him and asked for compensation, while arguing that the act of defendant has caused inconvenience to him and had reduced the value of his property. The court held that no remedy would be available to him.

Kinds of Tortious Liability in Law of Tort

There are three types of Tortious liability:

Strict Liability
Absolute Liability
Vicarious Liability
Strict Liability: In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the part of defendant. In other words, the defendant is held liable without fault.

Essentials: –

Hazardous things- A person will be held strictly liable if he keeps any dangerous substance on his land and it escapes to other person’s land causing harm to him.

Escape- Another essential is that there should be an escape of the hazardous substance from plaintiff’s to defendant’s premises. And if there is no escape takes place then plaintiff would not be held liable. For example: if the plaintiff’s horse intrudes into the defendant’s premises and eat a poisonous weed and dies, then defendant would not be held liable for the death as there was no escape from his land. (Ponting vs. Noakes).

Non-Natural use of land- To constitute a strict liability, there should be a non-natural use of land which includes any activity which is dangerous to other people.

In landmark case of Rylands vs. Fletcher, the defendant constructed a water reservoir with the help of independent contractors. While digging the contractors ignored an open shaft and which led to the plaintiff’s coal mine. When the water was filled, it flooded the plaintiff’s mines, causing loss to him. Here, the defendant was held strictly liable for the negligence.

Exceptions to the rule of Strict Liability:

Plaintiff’s fault- If the damage is caused to the plaintiff by his own fault then the defendant would not be held liable.

Act of God- (Vis Major) An event which is beyond the control of human, that arises of natural causes and cannot be prevented even after taking due care and caution. If any loss occurs to the plaintiff because of natural cause, then the defendant would not be held liable.

Act of third party- If any damage is caused to the plaintiff because of the act of any third party other than the defendant, then the defendant would not be held liable. For instance, in the case of Box Vs. Jubb, the reservoir of defendant overflowed because of the act of the third party, he emptied his drain through defendant’s reservoir. The court held that the defendant would not be held liable.

Consent of the plaintiff- Also known as ‘volenti non fit injuria’. When the plaintiff suffers damage due to some act, for which he has given his own consent.

Hall Vs. Brookland (1932), where the plaintiff went to see a car race where two cars collided with each other and because of that he got injured as he was sitting in the front row. Here, the plaintiff gave his own consent, thus, the principle of volenti-non-fit-injuria was applied.

Absolute Liability: (Rule of Strict Liability-Exceptions)

This principle was evolved in the case of MC Mehta Vs. UOI, where the court observed that if any damage or loss occurs to the plaintiff because of the dangerous or hazardous activity of the defendant, even though he takes all proper precaution while carrying out that activity, the defendant will still be held absolutely liable.

Vicarious Liability: Normally, the tortfeasor is liable for his tort. But in some cases, a person may be held liable for the tort committed by another. A master is vicariously liable for the tort of his servant, principal for the tort of his agent and partners for the tort of a partner. This is known as vicarious liability in tort. But it is necessary that there should be some relation between those two people.

There are two maxims on the master-servant relationship:

Qui facit per alium facit per se: Whenever a person gets the things done by another person, then such thing is viewed as he himself has done it.

For instance, A is the master and he order his servant to take his car for a carwash. On the wat to the carwash, the car gets into an accident because of the servant’s rash driving. Here, even though A was nowhere involved in this but he would still be held liable for the accident.

Respondant Superior: It is always assumed that the master is always at a superior financial condition than the servant, so he shall be liable for the acts of his subordinates.

Difference between Servant and Independent Contractor:

As we see, there is a slightest difference between a Servant and an independent contractor.

In case of a servant, there is a contract of service, where the master instructs the work to be done as well as the manner in which it has to be completed, to the servant.

Whereas in case of the independent contractor, there is a contract for service, where the master only instructs the work to be done but the manner in which it has to be done relies in the skills and will of the independent contractor.

Conclusion

It can be very well concluded from the above study that, a tort is a civil wrong, which means twisted or crooked. It is caused when a person infringes the legal right of another person, where the concept of mental element is not significant, it may occur intentionally or accidentally, but in certain cases it may be fundamental for it we have to determine the nature of the tort committed, for example battery, false imprisonment, etc.

The law of tort is uncodified and is taken from the England’s common law. This law is not fully developed and supported in India because people are less aware of their rights. However, there are some areas where laws have been established like Motor Vehicle Act and Consumer Protection Act.

Also, in the article, we have discussed the concept of Tortious liability, according to which there are three types of liability in tort and those are Strict, Absolute and Vicarious liability.

The law of tort is still an infant in the Indian Law system and new principles are developing every other day. Principles like, confidentiality, is emerging now-a-days. The further development of law of tort in India should be the priority of the judges and the lawyers, because it will help in eliminating the difficulties in the Nation’s growth and development of Indian Legal System.

References:

https://blog.ipleaders.in/law-of-torts-compilation-part-1/?amp=1

https://www.legalserviceindia.com/legal/article-7834-law-of-torts.html

https://blog.ipleaders.in/damnum-injuria/?amp=1

https://blog.ipleaders.in/concept-strict-liability-absolute-liability/?amp=1

Books Referred: R.K. Bangia and Avtar Singh, Ratanlal&Dhirajlal.