Define Tort and Law of Tort. Discuss its nature.

What are
its various ingredients? What conditions must be satisfied
before a liability in Tort arises? "A tort is a civil injury
but all civil injuries are not Torts". Explain. Distinguish
between Tort and Crime. How many kinds of Torts are
there?
The word tort has been derived from the latin word "tortum" which means to twist. In
general, it means conduct that adversely affects the legal right of others and is thus, "wrong".
For a healthy society it is necessary that it be free of anti-social elements and that an
individual should have freedom to exercise his rights without being restricted by others.
Further, if there is a transgression of any right, there must be a way to compensate or to
restore the right. This is essentially what the maxim, "Ubi just ibi remedium" implies. Where
ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to
enforce it. Such rights of individuals primarily originate from two sources - contractual
obligations and inherent rights that are available to all the citizens against every other citizen,
aka rights in rem. While the violation of contractual right has clear remedy that arises from
the contract itself, the violation of rights that are available to all the persons in general does
not have a clear remedy because there is no explicit contract between the two parties. Such
violations are called wrongs and it is for such wrongs that the law of torts has been
developed. For example, one has a right against all other persons to be free of noise in the
night. If somebody starts playing music loudly, then he violates one's right to be noise free.
He is, thus, doing a wrong and even though there is no contract between the two, one can sue
him for damages.
There can be innumerable types of acts that can transgress the rights of others and it is not
possible to come up with a definition that can accommodate all the cases. However, the
following are some definitions from the experts Salmond - A tort is a civil wrong for which the remedy is action in common law for
unliquidated damages and which is not exclusively a breach of contract or breach of trust or
other equitable obligation.
Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty
is towards persons in general and its breach is redressable by an action for unliquidated
damages.
Fraser - Tort in an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.
Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides
relief to the person who has been injured due to a tortious act.
From the above definitions, it is clear that the nature of a tort is that it is a civil wrong.
However, not all civil wrongs are torts. For example, breach of contract and breach or trust
are civil wrongs but are not torts because their remedies exist in the contract itself. To

determine if a particular act is a tort or not, we must first make sure that it is a civil wrong.
We should then make sure that it is NOT a breach of contract or breach of trust.
Historically, crime and tort originated from the same root. Later on, they separated on the
account that a crime does not only affect the victim but also to the society as a whole to a
great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than
the branch of law that deals with torts.
The nature of tort can be understood by distinguishing it from crime and contractual civil
liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do
not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of
a contract, it may fall under tort. The damages are unliquidated and are decided only by the
common sense of the courts. The following differences between Tort and Crime and Tort and
Breach of Contract, shows the true nature of Tort.

Distinction between Tort and Breach of Contract

Tort

Breach of Contract

Tort occurs when the right available to all the

A breach of contract occurs due to a
persons in general (right in rem) is violated without breach of a duty (right in persona)
the existence of any contract.
agreed upon by the parties themselves.
Victim is compensated for unliquidated damages as Victim is compensated as per the terms
per the judgment of the judges. Thus, damages are of the contract and damages are
always unliquidated.
usually liquidated.
Duty is fixed by the law of the land and is towards
all the persons.

Duty towards each other is affixed by

the contract agreed to by the parties.

Doctrine of privity of contract does not apply

because there is no contract between the parties.
This was held in the case of Donaghue vs
Stevenson 1932.

Only the parties within the privity of

contract can initiate the suit.

Tort applies even in cases where a contract is void.

For example, a minor may be liable in Tort.

When a contract is void, there is no

question of compensation. For
example, a contract with a minor is
void ab initio and so a minor cannot be
held liable for anything.

Justice is met by compensating the victim for his

injury and exemplary damages may also be awarded
Justice is met only by compensating
to the victim. In Bhim Singh vs State of J K AIR
the victim for actual loss.
1986 - the plaintiff was awarded exemplary
damages for violation of his rights given by art 21.
In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his
woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead
snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty
towards the public in general for making sure there are no noxious things in the drink even
though there was no contract between the purchaser and the manufacturer.
The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels

Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi
Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in
the pool. The pool design was defective and the person's head hit the bottom. He was
paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the contract.
It was held that he could sue even for the breach of contract as he was the beneficiary of the
contract. He could also sue in torts where plea of stranger to contract is irrelevant. The hotel
was held liable for compensation even though there was no contract between the person and
the hotel and the hotel was made to pay 50Lacs as exemplary damages.

Distinction between Tort and Crime

Tort

Crime

Tort occurs when the right available to all the persons

in general (right in rem) is violated without the
existence of any contract.

Tort occurs when the right available

to all the persons in general (right in
rem) is violated and it also seriously
affects the society.

Act is comparatively less serious and affects only the

person.

Act is comparatively more serious

and affects the person as well as the
society.

Intention is usually irrelevant.

Intention is the most important

element in establishing criminal
liability. A crime cannot happen
without Mens Rea.

It is a private wrong.

It is a public wrong.

Since it is a private wrong the wronged individual must Since it is a public wrong, the suit is
file a suit himself for damages.
filed by the govt.
The suit is for damages.

The suit is for punishment.

Compromise is possible between the parties. For

example, a person who has been defamed, can
compromise with the defamer for a certain sum of
money.

There is no compromise for the

punishment. For example, if a
person is guilty of murder, he
cannot pay money and reduce his
sentence.

Compounding is possible.

Compounding is generally not

possible.

Justice is met by compensating the victim for his injury

and exemplary damages may also be awarded to the
victim. In Bhim Singh vs State of J K AIR 1986 - the
plaintiff was awarded exemplary damages for violation
of his rights given by art 21.

Justice is met by punishing the

aggressor by prison or fine. In some
specific cases as given in IPC
compensation may be given to the
victim.

Tortious acts are usually not criminal acts.

Several criminal acts such as assault

and battery are also grounds for
tortious suit.

Ingredients of Tort (Conditions that must be satisfied

before a liability in Tort arises.)
There are three essential elements for an act to be liable under Tort.
1. Wrongful act or omission - There must be some act or omission of a duty on the part of
the defendant. For a tort to happen, the person must have first either done something that he
was not expected to do or omitted to do something that he was supposed to do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good
repairs. It fell and killed several people. MCD was held liable for its omission.
2. Duty imposed by law - The act or omission of an action must be required by law or the
duty must be imposed by law. This means that if an act that is prohibited by law causes
harm, it is liable under tort. Similarly, if the omission of an act that is required by law, causes
harm, then it is liable under tort. For example, law requires that the driver of a vehicle must
drive carefully and if driving without care, a pedestrian is hit, the omission of the act of
driving carefuly is liable under tort. However, if the worshipers stop going to a temple and
thereby cause the priest to lose money, this action is not liable under tort because going to
temple is not an act that is required by law. Such duties that are required by law are usually
towards all the people in general.
Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal
duty towards the consumers to ensure that noxious substances are not included in the drink.
3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a
legal right vested in the plaintiff. This means that the act or omission must cause a damage
that is recognized by law as wrongful. For example, a person has a legal right to enjoy his
property and if someone throws trash in it, this is a violation of his legal right and is liable
under tort. However, it is possible that a legal right is violated without causing any physical
or real damage. This is explained in the maxim - Injuria Sine Damno.
Injuria Sine Damno Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting.
Even though there was no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully
arrested while going to assembly session. He was not produced before a magistrate within the
requisite period. It was held that this was the violation of his fundamental rights. Even
though he was release later, he was awarded 50,000RS as exemplary damages by SC.
On the other hand, it is possible that a person suffers a huge loss or damage but none of his
legal rights are violated. This is called Damnum sine Injuria. In such cases, there is no
tortious act.
Damnum Sine Injuria Glaucester Grammar School's case 1410 - Defendant opened a rival grammar
school in front of an existing one thereby causing the fees of the existing one to be reduced
from 40pence to 12 pence. He was not held liable as he did not violate any legal right of the
plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent
injunction against the cinema house to restrain them from showing the movie Jai Santoshi
Maa. It was contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in
bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not

recognized as a legal wrong. Since there was no violation of a legal right, an injunction was
not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground
for past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water
which diminished the water supply of the plaintiff. It was held that the defendant was not
liable because he was only exercising his right and did not violate any right of the plaintiff.
Harm due to negligence - A person is not liable in tort even if he causes harm due to
negligence but does not cause injury. In Dickson vs Reuter's Telegram Co 1877, the
defendant company delivered a telegram that was not meant for the plaintiff to the plaintiff.
Based on the telegram, the plaintiff supplied some order which was not accepted by the
sender of the telegram. Plaintiff suffered heavy losses and sued the defendant company. It
was held that the company owed a contractual duty only to the sender of the telegram and not
to the receiver. Hence they were not liable.
Harm due to malice - If a person has not caused an injury even if he does an act with
malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the
defendants sunk a shaft in their own land which caused the water to become discoloured and
unsuitable for the plaintiff. It was held that even if the defendant did it with malice, he had
not violated any right of the plaintiff and hence was not liable.
4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue
only upon a permission from the King. There were only certain predefined torts for which the
king's permission could be obtained. Thus, it was necessary to have legal remedy for that
particular violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be many
kinds of torts and if a violation of a legal right has happened, the person is enttitled to sue.

Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of
others. The law of tort is therefore ever evolving. New ways in which the rights are violated
come to light everyday. However, they can be classified on the basis of way of incurrment of
liability into the following three categories 1. Intentional - Wrongful acts that are done intentionally, irrespective of with or without
malice, belong to this category. For example, torts such as assault, battery, trespass to
land, false imprisonment are intentional torts.
2. Negligent Conduct - Wrongful acts that are done without any intention but because of
not taking proper care that is required by law fall into this category.
3. Strict Liability - Acts that are neither done intentionally nor do involve any
negligence, but still cause an injury to other are liable under the concept of strict
liability as propounded in Rylands vs Fletcher. In strict liability cases, the defendant
is liable even if it acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)
Torts can also be classified according to the type of damage -

1. Physical Torts - Causing physical hurt to body such as assault, battery. It can happen
with intention or even with negligence.
2. Abstract Torts - Causing damage to mind or reputation such as defamation.
3. Tort involving property - For example, Trespass to land.
4. Tort involving legal right - For example, false imprisonment.
5. Nuisance - Causing unreasonable restriction towards exercise of one's legal right.