LAW OF TORTS
NATURE –
• Law of Torts is a branch of law controlling the
behaviour of people in society.
• Aim – to define individuals rights and duties in
the light of prevalent standards of reasonable
conduct and public conveniences.
• Main aim – provide compensation to the
victims or their dependants.
ORIGIN OF THE TERM ‘TORTS’
• In law it means ‘a wrong’ or ‘injury’ which can
be redressed by an action for damages at the
instance of the wronged or injured person
• Derived from a latin term ‘Tortum’- twisted or
crooked act.
• It was introduced in English law by French
speaking lawyers or judges after the Norman
conquest.
• Debt, tresspass,heir
HISTORICAL DEVELOPMENT
• In the 17th century procedure was considered more important
than rights of a person.
• There were certain recognised forms of writs /actions which
could be used for providing remedy for a wrongful conduct.
• Plaintiff had to choose appropriate writ and pay for it if he
chose a wrong writ or his action did not fit in that writ his suit
was DISMISSED
• RULE- UBI REMEDIUM IBI JUS I.e where there was no writ
there was no right .
Ultimately the Judicature Act 1872 & Common
Law Procedure Act 1852 abolished the writs
and there was a shift of primacy
i.e UBI JUS IBI REMEDIUM- where there is a
right there is a remedy.
• The person committing the Tort – TORT
FEASOR / JOINT TORT FEASORS
• The person who suffered injury – INJURED
• Act- TORTIUS ACT
• Damages - COMPENSATION
DEFINITIONS
• It has been rightly remarked that-
• ‘ A satisfactory definition of Tort is almost certainly an
impossibility’ - Winfield
• Reasons –
• Its uncodified ( based on case laws ).
• Procedure grew through a complicated procedure (writs ,slow
growth of law of torts)
• Law of Torts is still growing
Never the less definition of Tort has been
attempted by several writers but the most
prominent are by
• Winfield and Salmond
• Winfield’ Definition –
• ‘Tortious liability arises from the breach of a duty
primarily fixed by law ,this duty is towards persons
generally and its breach is redressable by an action
for unliquidated damages’.
1. Breach of duty (Pre-existing legal duty)
2. Primarily fixed by law( pre-existing) ( not consent
of parties)
3. Duty towards persons generally (general duty
towards all)
4. Breach
5. Remedy of unliquidated damages
• Salmond’s Definition
• ‘A civil wrong for which the remedy is a
common law action for unliquidated
damages and which is not exclusively the
breach of contract or the breach of a trust or
other merely equitable obligations.’
• According to the definition there are three
features necessary to constitute a Tort-
1. There must be an act or omission which
amounts to a civil wrong
2. Tort is other than a breach of
Contract/Trust/ alike
3. Action for unliquidated damages
• It is to be noted that Salmond’s definition has
received judicial approval in several English
cases and is also adopted in Section 2 of the
Indian Limitation Act which defines a Tort as
‘A civil wrong which is not exclusively the
breach of a Trust’.
• Even the Supreme Court in Jaylaxmi Salt
Works Vs State of Gujrat has quoted approval
for the definitions given by Salmond &
Winfield .
CHARACTERISTICS OF TORT
• Civil wrong
• Infringement of Right in Rem – Right vested in
some determinate person ( personally / as a
member of the society) available against the
world at large e.g. Right not to be defamed or
assaulted.
• Right fixed by Law
Independent of consent of parties like under
Law of Contract.
• Remedy
By way of unliquidated damages (also
alternative remedy is available besides
damages e.g. Injunction, recovery of
possession ,specific restitution etc but the
primary remedy is damages.)
DISTINCTION BETWEEN TORT & CRIME
1. Nature of wrong
Tort – Private wrong as it is infringement of a private /
civil rights of an individual
Crime-Public wrong .Is an invasion on the public rights
and duties affecting the whole society.
2. Remedy –
Tort-Wrong doer has to compensate injured party by
Damages.
Crime- involves punishment of the offender to deter him
and others from committing crime.
3. Procedure
Tort- A civil suit is instituted only by person wronged .
Crime- As it is a wrong to the public, proceedings are conducted in the
name of the State .
Tort is compoundable but a Crime is not Compoundable.
4. Same act may be Tort and Crime
E.g. Defamation is a crime under section 499 IPC
in such cases ,generally the civil and criminal remedies are concurrent
and not alternate i.e. You can ask for damages too in a criminal case for
Defamation.
Supreme Court in the case of P.Rathinam Vs Union Of India had
considered the distinction between Tort and Crime.
CAN YOU GIVE SIMILARITIES BETWEEN TORT & CRIME ?
DISTINCTION BETWEEN TORT AND
CONTRACT
1. Nature of the right infringed
Tort- There a violation of Right in Rem i.e. right
exercisable against the whole world .
Violation of a Right in Personam i.e. right exercisable
against a definite person.
2. Duty
Tort –Duty is imposed by law & is owed to the society in
general.
Contract- Duty is fixed by will and consent of the parties
and is owed to a definite person.
3. Consent
Contract- Consent of the parties is the foundation of the
Contract.
Torts- Obligation arises independent of any consent.
4. Damages
Tort – Unliquidated Damages
Contract – Liquidated Damages
5. Limitation period
Torts – Begins from the date of when damage is suffered.
Contract – Begins from the date when breach occurred.
6. Motive
Tort – Taken into consideration for some Torts e.g.
Malicious Prosecution
Contract- Motive is generally immaterial.
CASE STUDY
• P. Rathinam Vs Union Of India ( AIR 1994 SC
1844)
• Jay Laxmi Salt Works Vs State of Gujarat 1994
