1
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
(..1..)
GENERAL PRINCIPLES
(Evolution; Definition; Nature, Scope and Objects of Torts)
QUESTION BANK
Q.1. "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
Trust, or other equitable obligations" as Salmond describes a tort. Explain and state
the nature of tort in brief.
Q.2. Distinguish a tort from a breach of contract. Can the same wrong constitute both a
tort and a breach of contract?
Q.3. All torts are civil injuries but all civil injuries are not torts. Explain fully.
Q.4. Define 'Tort' and clarify the distinction between a tort and a crime.
Q.5. Define 'Tort'. What are its main characteristics?
Q.6. Define 'Tort' and distinguish between 'Tort' and 'breach of contract'.
Q.7. Discuss, briefly the evolution and development of the law of Torts in England.
SYNOPSIS
I.
TORT DEFINED: -
1. Salmond: -
2. Ratanlal and Dhirajlal:-
3. P. H. Winfield: -
4. According to Fraser,-
5. Privy Council-
II.
NATURE OF THE LAW OF TORTS:-
2
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
III. WRONGS WHICH ARE NOT TORTS: -
(a)
(b)
Exclusively criminal wrongs: -
1. As to the nature of wrong:-
2. As to the remedy available:-
3. As to the procedure:-
Civil wrongs which are exclusively contracting:-
1. Nature of right:-
2. Gravity:-
3. Consent:-
4. Motive:-
5. Remedy:-
6. Duty:-
7. The starting point of the period of Limitation:-
Breaches of trust or other equitable obligations:-
Wrongs that are quasi-contractual:-
NOTES
(c)
(d)
1.
2.
'Damages and Damage'.
Origin and development of tort.
I.
TORT DEFINED: -
The French word 'tort' means 'wrong'. It is derived from the Latin term 'tortum',
which means 'to twist'; thus, 'tort' implies conduct that is 'twisted' or 'wrongful', 'crooked'
or 'unlawful'. This branch of law consists of various 'torts' or wrongful acts whereby the
wrongdoer violates some legal right vested in another person. The law imposes a duty to
respect the legal rights vested in the members of the society, and the person who breaches
the duty is said to have done the wrongful act.
The main object of the law of torts is compensation to the victim or their
dependents. Another aim of the law of torts is to deter wrongdoers by awarding exemplary
damages.
Defining 'Tort' is a difficult task due to its growing scope. Some of the important
definitions of tort are as follows.
1.
Salmond: -
"Tort is a civil wrong, for which remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of contract, or breach of trust, or other
merely equitable obligations".
2.
Ratanlal and Dhirajlal: -
"Tort is a civil wrong independent of contract, for which the appropriate remedy is an
3
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
action for unliquidated damages".
3.
P. H. Winfield: -
"Tortious liability arises from the breach of a duty primarily fixed by law; such duty is
towards persons generally, and its breach is redressible by an action for unliquidated
damages".
4.
According to Fraser: -
"A 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".
5.
Privy Council-
"tort is an act or omission which prejudicially affects another and some legal rights giving
him a right to claim damages".
Thus, from the above definitions, it can be said that-
(i) Tort is a civil wrong,
(ii) This civil wrong is other than a mere breach of contract, breach of trust
or breach of remedy of equitable obligations, trusts, etc.
(iii) This wrong is redressible by an action for unliquidated damages.
The person who commits the wrong is called 'tort-feasor' or 'wrongdoer', and his act is
called a 'tortious act.'
II.
NATURE OF THE LAW OF TORTS:-
While considering the nature of the law of torts, an interesting question arises that,-
(i) Is it a Law of Torts? i.e., does the law of torts consist of several specific rules
prohibiting only certain types of activities? (Like in I.P.C. India Constitution,
Contract Act, etc.) or
(ii) Is it the Law of Tort? i.e., does it consist of fundamental general principles
based on the concept that 'it is wrong to cause harm to other people?' though it falls
under any of the heads recognised in torts or not?
Fredric Pollock and Salmond champion the former view; according to them, it is a
Law of Torts. Salmond mentioned that "there is no English Law of tort; there is merely
an English Law of torts", i.e., the law of torts consists of specific, well-defined wrongs
and not general principles. According to another supporter of this view, i.e., Sir. Fredric
Pollock- the law of torts consists of a 'neat set of pigeon-holes, each consisting of a
specific tort. If the defendant's wrong does not fit in any of these pigeon-holes (i.e.,
specific heads) of tort like assault, battery, deceit, slander, etc., he commits no tort. This
theory was first approved in the case.
4
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
The Court observed that the plaintiff must bring his case under one of the well-
recognized heads of torts (e.g., Assault, battery, mayhem, libel, etc.).
According to the second view, it is merely the Law of Tort. Sir Winfield supports
it. He says that "all injuries to another person are torts, whether it falls in any of the heads
recognised in torts or not". According to him, the basis of tortious liability is the "damage
caused to another person willfully and intentionally, without just cause and excuse". Even
the Indian Supreme Court, in various cases, upheld this view; one of them is Ashby V.
White (discussed later). According to this school of thought, the first view limits the scope
of tort law.
Conclusion: In recent times, neither of these theories has been accepted in its
entirety to the exclusion of the other.
In modern times, the scope of torts is changing rapidly. This is because people's
duties towards others are increasing in modern times. Thus, violating a duty to injure
someone else's reputation results in the tort of defamation, and violating a duty not to
interfere with the possession of another person's land results in the tort of deceit. The
duty of companies is to take care while providing consumable goods to consumers. The
'public carrier provider' duty is to care for the passengers. The duty of the driver is to
drive carefully. The duty of the hazardous industries to take care of the labour, the new
emergence of consumer protection laws, etc., expands the scope of tort.
III.
WRONGS WHICH ARE NOT TORTS: -
There are four classes of wrongs that fall outside the sphere of tort. Moreover, these
four classes of tort form the core of civil wrongs.
a) Exclusively criminal wrongs: -
Ordinarily, wrongs are either civil or criminal. Thus, detention, conversion, and
wrongful dismissals are purely civil wrongs, i.e., torts. On the other hand, dacoity,
murder, forgery, etc., are purely criminal wrongs, i.e., crimes. Both a tort and a crime
resemble each other in that both are violations of rights in rem, and both rights and duties
are fixed by law (irrespective of the parties' consent).
The following are points of distinction between civil and criminal wrongs: -
As to the nature of wrong:-
A tort is a private wrong, an infringement of an individual's private or civil right.
On the other hand, a crime is an invasion of public rights and duties affecting
1 1898 AC.1
5
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
society. Hence, a State is a party in criminal proceedings.
As to the remedy available:-
In 'tort', the wrongdoer must compensate another party. Whereas in crime, he is
punished by the State; even in crime, compensation to victims may be awarded in
addition to punishment. But the nature of the remedy remains the same, i.e., punishment.
As to the procedure:-
In tort, the injured party files the suit in civil court. In crime, the proceedings are
taken and conducted in the name of a state in criminal courts.
b) Civil wrongs, which are exclusive contracts:-
Tort and breach of contract are alike, as much as private rights are infringed.
Moreover, in both cases, action is taken by a person injured, and the remedy is by way of
compensation or damages.
Following are, however, some of the differences between tort and breach of contract:-
1) Nature of right:-
A tort is a violation of a right in rem, i.e., a right exercisable against the whole
world. In contrast, a breach of contract is an infringement of a right in personam, i.e., a
right exercisable against a definite person or persons.
2) Privity:-
In tort, no privities exist. In other words, action can be brought against a person
who violates personal rights. However, in a breach of a contract, there should be privity
between the parties because a breach of a contract gives right in personam (i.e., among
the persons who have entered into a contract).
3) Consent:-
In tort, an obligation arises independent of consent (i.e., a tort is inflected against
the will without the other party's consent). In contrast, consent must always exist between
the parties in a contract.
4) Motive:-
In a tort, the motive is often taken into consideration. However, in the contract, the
motive of the defendant is generally immaterial.
5) Remedy:-
In tort, the remedy is to bring suit for unliquidated damages (Unprefixed). In
breach of contract, the remedy is liquidated damages (i.e., prefixed).
6) Duty:-
In the case of a tort, the duty is imposed by the law and is towards society in general.
6
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
In the case of a contract, a contract between the parties fixes the duty, and it is imposed
against a definite person or persons entitled to a contract.
7) The starting point of the period of Limitation:-
In tort, a limitation period for filing a suit usually runs from the date when
the damage is suffered. Whereas, for a suit for breach of a contract, the limitation period
runs from the date of the breach. In India, Limitation Act, has prescribed the period of
limitation for the filing the suit for tort.
C) Tort and Breaches of trust or other equitable obligations:-
A breach of trust is neither a breach of contract nor a tort. Trust is a matter
of confidence; it is merely an equitable wrong, not a tort.
D) Wrongs that are quasi-contractual:-
Civil wrongs which create no right of action for unliquidated damages but
give rise to some other form of civil remedy exclusively are not torts. Remedy in the form
of unliquidated damages is the essence of a tort, but liquidated damages are the remedy
in a quasi-contract. Quasi-contract, in truth, is neither a category of the contract nor of a
tort, but it forms a distinct category called restitution.
============================================================
NOTE
1.'DAMAGES' and 'DAMAGE'.
The word 'damage' must not be confused with' damage'. These two words are not
equivalent, nor is the term 'damages' the plural 'damage.'
The term 'damage' means and includes the loss of money, comfort, health, property,
or the like caused by the defendant's wrongful act. In contrast, the term 'damages' means
the monetary compensation claimed by the injured party and awarded by the court.
In short, 'damage' means the loss inflected by the defendant's wrongful act, for the
recompense of which the court award pecuniary compensation, i.e.' damages'.
Liquidated and unliquidated damages
Damages in the case of a tort are unliquidated. Therefore, we can distinguish tort
from other civil wrongs, such as a breach of contract or breach of trust, where the damages
may be liquidated. A 'liquidated damages' means such compensation which has been
previously determined or agreed to by the parties. When the compensation has not been
so determined, but the determination of the same is left to the court's discretion, the
damages are said to be unliquidated. It is possible in the case of a contract that the
contracting parties, at the time of the making of the contract, may stipulate the amount of
compensation payable by either of the parties in the event of a breach of the contract. If
it is a genuine pre-estimate of the compensation for the breach of the contract, it will be
7
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
known as liquidated damages. There is no possibility of any such pre-determination of
damages by the parties in the case of a tort. Generally, the parties are only known to
each other once the tort is committed, and it is challenging to visualise the quantum
of loss in the case of a tort. Therefore, the damages to be paid are to be determined at the
court's discretion; such damages are unliquidated.
============================================================
2. ORIGIN AND DEVELOPMENT OF TORT.
IN ENGLAND-
Originally, there was no distinction between various wrongs. There was no
separation as Crime, Tort, or breach of contract. In the fourteenth century, remedies for
wrongs were dependent upon writs. No one could bring an action in the King's common
law courts without the King's writs, and the number of writs available was very limited.
The maxim 'Ubi remedium ibi jus' (Where there was no writ (or remedy), there was no
right) was prevalent. Every Plaintiff had to bring his cause of action in a recognised form
of action. A tort is the emergence of a 'writ of trespass' prevalent at that time. This writ
of trespass was issued against direct and immediate injury to land, goods, or persons. It
did not extend to indirect or consequential injuries. Whereas the remedies for indirect or
consequential injuries lay in 'trespass on the case', this writ system remained prevalent
for the next five hundred years. Some amendments to the existing system were made in
1832 and 1833. Eventually, in 1852, the Common Law Procedure Act was passed,
abolishing writs. It is no longer necessary to mention any particular forms of action (i.e.,
Writ) by which the plaintiff's case was covered. Primarily, if such a particular form of
action was not specified, the action of the plaintiff would fail.
The Judicature Act 1873 further provided that the pleading was to contain
only a statement or summary of material facts. By this Act, the existing position had
changed, 'Ubi jus ibi remedum' (when it is right, there is a remedy) maxim came into
being, replacing 'Ubi remedium ibi jus' (When there is a remedy, there is right). Thus,
whenever there was an unjustifiable interference with the rights of a person, the courts
provided the remedy for the same. Thus, the law of torts is the main product of judicial
decisions.
The legislatures have to play a significant role in developing this branch of
law by defining liability in various situations where some form of injustice is caused by
the courts' decisions or the social justice demands intervention by the legislation. The
legislatures have passed various Acts, like the Fatal Accidents Act. of 1846 and the
Workmen's Compensation Act.1897, Law Reforms (Miscellaneous Provisions)
Act.1934, Law Reforms (Married Woman and Tort Feasor's) Act.1935.
LAW OF TORTS IN INDIA: -
8
âLaw Masterâs Publicationâ
âIntroductionâ
Prof. Santosh D. Bhosale
Under Hindu and Muslim Law, tort had a much narrower conception than
in English Law. Punishment for the crime had a more prominent role than compensation
for wrong. The Law of Torts applicable in India is the English Law of Torts, which is
based on Common Law prevailing in England. Such rules of tort are applied in Indian
society and are suitable to Indian society and circumstances. When statutory or customary
Law does not exist in a given case, courts in India are guided by principles of 'justice,
equity and good conscienceâ. According to the Privy Council, "justice, equity, and good
conscience" refer to those rules of English law that apply to Indian society and
circumstances. Even S. 9 of the C.P.C (Civil Procedure Code) impliedly confers
jurisdiction on civil courts to apply the law of torts as principles of justice, equity, and
good conscience. Before applying the principles of 'justice, equity, and a good conscience
(i.e., common law principles), the court must see whether the principles are suitable to
Indian society and circumstances. In other words, the principle of 'justice equity and good
concise' permits the Court to decide the case before it, even though the decision may
require the extension or adoption of a principle or, in some cases, the creation of a new
law to meet the justice of the case. There is no codified Act of the Legislature (like the
I.P.C. or the Indian Contract Act) in dealing with the Law of Torts. The reason
(advantage) for not reducing the law of tort in its statutory form (even after demand by
several Jurists in England and India) might be the fear of limiting the scope and nature of
the law of Torts by such codification. However, non-codifying the law of tort creates
many problems or disadvantages; firstly, the law of tort presently is in the form of decided
cases by the court; consequently, it is in scattered form and not compiled. Therefore,
lawyers and judges have to work hard to find them. Secondly, we may often get case laws
that are contrary to each other on a single point. This creates chaos in the administration
of the justice system and paves the way for unnecessary appeals.
However, recently, some parts of the Law of Tort have been codified,
leaving many others uncodified, e.g., The Fatal Accident Act, The Workmen's
Compensation Act, The Employers Liability Act, etc.
*****