LAW OF TORTS

The Law of Torts in India

• The law of torts as administered in India in modern times is the
English law as found suitable to Indian conditions and as modified
by the Acts of Indian Legislature.
• Its origin is linked with the establishment of British Courts in India
(in 18th century).
• They were called as Mayor’s Courts established in 3 Presidency
towns of Calcutta, Madras and Bombay.
• The Englishmen administering justice in these courts normally
followed the common law and the statute law of England as
suitable to Indian conditions when deciding cases according to
justice and right.
• During British rule, Courts in India were administered
by the Statutes of Parliament in the UK.
• The Indian enactments were supposed to act based
on justice, equity and good conscience which are
commonly known as the “General Principles of Law”
when there was no specific law to solve the particular
dispute in a suit.
• They did not consider it when any of its rules were
found unreasonable and unsuitable to Indian
situations.
• Later Supreme courts were established in these three
towns which replaced the Mayor Courts and were
modelled on the English pattern.
• Then the Supreme Courts were superseded by the
High Courts in those three towns but the jurisdiction
to administer the English common law was continued.
• The law of torts is a part of the common law, and it
was thus the English law of torts came to be applied
in the cities of Calcutta, Madras and Bombay.
• But the common law so applied by the high courts is
only an exercise of their ordinary original civil
jurisdiction and not appellate jurisdiction i.e., the
jurisdiction to hear appeals from decrees of Mofussil
courts.
• As regards other courts in India (other sub-ordinate
courts), there is no express provision for the
administration of the English common law.
• These courts have been established by Acts and the Acts which
established them contain each a section that, in the absence of
any specific law or usage, then to act according to ‘justice,
equity and good conscience’.
• The expression justice, equity and good conscience was
interpreted by the Privy Council to mean the rules of English
law if found applicable to Indian society and circumstances.
• In Union Carbide Corporation v. UOI, 1988 it has been held that
section 9 of the code of Civil Procedure, which enables a civil
court to try all suits of a civil nature, impliedly confers
jurisdiction to apply the law of torts as principles of justice,
equity and good conscience.
• The law of torts in India is thus almost wholly the
English law which is administered as rules of justice,
equity and good conscience.
• The Indian courts, however before applying any rule
of English law can see whether it is suited to the
Indian society and circumstances.
• In India, the law of torts has not being fully codified
and it is still based on common law of England which
has been applied by Indian courts in India.
Reasons for slow development
of law of torts in India
• Uncertainity of law
• Illiteracy
• Poverty
• Expensive and dilatory judicial system
• Lack of political consciousness
One major reason for the lack of tort litigation in India is the
lack of consciousness about one’s rights and the spirit of
toleration which is generally found as a matter of attitude in a
common man in India.
• In England, an action was brought –
• When a person was prevented from crossing over a
bridge for sometime (Bird v. Jones, 1845)
• When a person was locked inside a public lavatory for
a short duration due to defective door handle (Sayers
v. Harlow Urban Distt. Council, 1958)
• When the work in the Plaintiff’s factory was stopped
for 7 hours due to failure of electric supply (S.C.M
(U.K) Ltd. v. Whittal & Son, 1971)
• The decomposed body of a snail was found in a bottle
of drink, (Donoghue v. Stevenson, 1932)
• In India in a dog bite case, the plaintiff was awarded
damages amounting to Rs. 6000 by a New Delhi additional
judge and it was considered to be a unique case, and
therefore, that caught the headlines of most of the leading
Indian newspapers. (The Hindustan Times, New Delhi, dated
9.2.1985)
• Undue Delay in the final disposal of cases- Shyam Sunder v.
State of Rajasthan, (A.I.R. 1974 S.C. 890)
• Recent trend : due to urbanization , industrialization and
modern scientific advancement, the law of torts in India is
developing.
• Example : M.C.Mehta v. U.O.I, 1987- SC has established a
new doctrine – Doctrine of absolute liability- instead of
doctrine of strict liability – in Rylands v. Fletcher, 1868.
NATURE AND DEFINITION OF
TORT
• The word tort is the French equivalent of the English
word ‘wrong’.
• The word ‘tort’ is derived from the Latin term ‘tortum’
which means to twist, and implies conduct which is
twisted or tortious.
• The basic principle underlying tort is that no one
should be harmed by the acts of others. There is a
duty of care towards everybody, which is impliedly
imposed under law.
• This branch of law consists of various torts or
wrongful acts whereby the wrongdoer violates some
legal rights vested in another person.
• The person committing a tort or wrong is called a tort-
feasor or wrong doer and his misdoing is a tortious
act.
• Right and duty co-relative.
• Law imposes a duty to respect the legal rights vested
in the members of the society and the person making
breach of that duty is said to have done the wrongful
act.
Example: defamation, trespass etc.
DEFINITION

• Salmond: a tort is a civil wrong for which the

remedy in common law is action for unliquidated
damages, and which is not exclusively the breach
of a contract or trust or other merely equitable
obligations.
• Frazer: a tort is an infringement of a right of a
private individual giving a right of compensation
at the suit of the injured party.
• It may be observed that :
I. Tort is a civil wrong;
II. This civil wrong is other that a mere breach of
contract or breach of trust;
III. This wrong is redressable by an action for
unliquidated damages.
Tort is a Civil Wrong
• Tort belongs to the category of civil wrongs. It is
also different from a crime.
• The injured party i.e., the plaintiff, institutes civil
proceedings against the wrong doer, i.e., the
defendant.
• The main remedy is damages.
Tort and Crime
Tort is very different from crime:
1. Tort is an infringement of the private or civil rights
belonging to individuals. Whereas a crime is a breach of
public rights and duties which affected the whole
community.
2. In tort the wrong doer has to compensate the injured
party; Whereas in crime, he is punished by the state in the
interests of the society.
3. In tort the action is brought by the injured party; in crime,
the proceedings are conducted in the name of the state.
• In State of Maharashtra v. Govind Mhatarba Shinde,
2010- the Bombay High Court has viewed the
difference from the perspective of the nature of
punishment and sanctions imposed.
• Contract and tort
1. Contract is founded upon consent; tort is inflicted
against or without consent.
2. In tort breach of duty – primarily fixed by law; in
contract – with the consent of the parites.
3. In tort – violation of right in rem; in contract it is
infringement of right in personam.
4. In tort motive for breach of duty is immaterial; in
contract it is sometimes taken into consideration.
5. In both the general remedy is damages but the
purposes for which damages are given are different. In
contract the nature of damages is compensatory and it
is generally fixed or predetermined, e.g., by a clause in
a contract. In tort the damages are unliquidated and
are determined by the court on the facts and
circumstances of the case. In contract its fixed
according to terms and conditions of contract.
• Essentials of a tort
• To constitute a tort it is essential that the following two
conditions are satisfied:
1. There must be some act or omission on the part of the
defendant; and
2. The act or omission should result in legal damage, that is
violation of the legal right vested in the plaintiff.
1. Act or Ommission
• In order to make a person liable for a tort, he must have
done some act which he was not expected to do, or he must
have ommitted to do something which he was supposed to
do.
2. Legal Damage
• Damage means the loss or harm suffered by a person as
a result of some wrongful act of another.
• Damages - The sum of money awarded by the court to
compensate the damage caused is called damages.
• Legal damage- violation of legal right.
• In order to be successful in an action for tort, the
plaintiff has to prove that there has been a legal damage
caused to him. In other words it has to be proved that
there was a wrongful act –an act or omission – causing
breach of legal duty or the violation of legal right vested
• Unless there has been violation of a legal right or injuria ,
there can be no action under law of torts. If there has been
violation of legal right injuria, the same is actionable,
whether the plaintiff has suffered any loss or not. The
plaintiff can still go to the court of law because no violation
of legal right should go unredressed. This is expressed by the
maxim “Injuria sine damnum”.
• Since what is actionable is the violation of a legal right, it
therefore follows that when there is no violation of a legal
right, no action can lie in a court of law even though the
defendants act has caused some loss or harm or damage to
the plaintiff. This is expressed by the maxim “Damnum sine
injuria”.
• Two maxims- injuria sine damno and damnum sine injuria.
• Injuria sine damnum- i.e., infringement of absolute right
without any actual loss or damage, the person whose right
is infringed has a cause of action.
• Ashby v. White, 1703 – is a leading case explaining the
maxim injuria sine damno.
• Facts: the plaintiff was a qualified voter at a Parliamentary
election, but the defendant, a returning officer, wrongfully
refused to take plaintiffs vote. No loss was suffered by
such refusal because the candidate for whom he wanted
to vote won the election in spite of that. The plaintiff
brought an action against the defendant.
• It was held that the defendant was liable.
• In this case, the plaintiff succeeded in his action, even
though the defendant’s act did not cause any damage.
• Holt, C.J said: “if the plaintiff has a right, he must of
necessity have a means to vindicate and maintain it,
and a remedy, if he is injured in the exercise of
enjoyment of it; and indeed it is a vain thing to
imagine a right without a remedy; for want of right
and want of remedy are reciprocal.”
• Bhim Singh v. State of J & K, A.I.R. 1986 S.C 494- The
petitioner and MLA of J & K.. Assembly, was
wrongfully detained by the police while he was
• Going to attend the assembly session. He was not
produced before the Magistrate within the requisite
period. As the consequence of this, the member was
deprived of his constitutional right to attend the
assembly session. There was also violation of
fundamental right to personal liberty guaranteed
under Article 21 of the Constitution. By the time the
petition was decided by the Supreme Court, Bhim
Singh had been released, but by way of consequential
relief, exemplary damages amounting to Rs. 50,000
were awarded to him.
• Damnum sine injuria- actual and substantial loss without
infringement of any legal right, no action lies.
• Gloucester Grammar School case (1410) YB 11- the
defendant a school master, set up a rival school to that of
the plaintiffs. Because of the competition, the plaintiffs had
to reduce their fees. It was held that the plaintiffs had no
remedy for the loss thus suffered by them.
• Hankford J. said: “damnum may be abseque injuria, a if I
have a mill and my neighbor builds another mill whereby
the profit of my mill is diminished, I shall have no action
against him, even though I have suffered damages. But if a
Miller disturbs the water from going to my mill, or does any
nuisance of the like sort, I shall have such action as the law
• Mogul Steamship Co. v. Mc. Gregor, Gow & CO.,
(1892) AC 25 a number of steamship companies
combined together and drove the plaintiff company
out of the tea carrying trade by offering reduced
freight. The House of Lords held that the plaintiff had
no cause of action as the defendants had by lawful
means acted to protect and extend their trade and
increase their profits.
• Acton v. Blundell, (1848) 12 M & W. 324- the
defendants by digging a coalpit intercepted the water
which affected the plaintiffs well, less than 20 years
old, at a distance of about one mile. Held that the
defendants not liable.
• It was observed that: “ the person who owns the
surface, may dig therein and apply all that is there
found to his own purposes, at his free will and
pleasure, and that if in exercise of such rights , he
intercepts or drains of the water collected from
underground springs in the neighbors well, this
inconvenience to his neighbor falls within the
description damnum sine injuria which cannot
become the ground of action.”
Ubi jus ibi remedium
• The maxim ubi jus ibi remedium means where there is
a right, there is a remedy.
Development of the law:
• Originally there was no distinction between wrongs
and there was no compartmentalization like crime,
tort or breach of contract, etc.
• Various writs governed the position.
• In 14th century success of an action depended upon
the availability of the writ.
• The law was Ubi remedium ibi jus i.e., where there is a
remedy there is a right.
• So, if there was no remedy by way of writ, there was
considered to be no right.
• Plaintiff had to choose the right kind of a writ for the
wrong done to him. If he chose a wrong writ, which
did not cover his case, his case failed.
• Later some amendments were made in 1832 and
1833 and ultimately in 1852, Common Law Procedure
Act was passed whereby the writs were abolished.
• Further Judicature Act, 1873 provided that the
pleading was to contain only a statement or summary
of material facts relied upon by a party.
• Now, the position is that whenever the court is
convinced that there is a lawful right of a person is
violated, a remedy is provided for the same.
Is it law of Tort or Law of Torts
• There are two competing theories as to whether there is law
of tort or law of torts, one providing for a general principle of
liability and the other a definite number of torts.
• There are two competing theories in this regard. According
to one theory, there is a general principle that all wrongs are
actionable as tort unless there is any legal justification. The
other theory says that there is no general principle of liability
as such but only a definite number of torts as trespass,
negligence, nuisance, defamation etc. and the plaintiff has
no remedy unless he brings his case under one of the
nominate torts.
• It Is Law Of Tort: Winfield is the chief supporter of
this theory. He says, all injuries done to another
person are torts, unless there is some justification
recognized by law. Thus according to this theory tort
consists not merely of those torts which have
acquired specific names but also included the wider
principle that all unjustifiable harm is tortuous. This
enables the courts to create new torts. Winfield while
supporting this theory comes to the conclusion that
law of tort is growing and from time to time courts
have created new torts.
• Supporters of This Theory: The theory given by
Winfield has been supported by many eminent Judges
both ancient and modern. Following are some
examples:
• HOLT, C.J. clearly favoured Winfield’s theory, by
recognizing the principle of ubi jus ibi remedium. He
said that, if man will multiply injuries, actions must be
multiplied too; for every man who is injured ought to
have recompense [Ref. case- Ashby v. White (1703) 2
Ld. Raym. 938].
• In 1893, BOWEN, L.J., expressed an opinion that at
common law there was a cause of action, whenever
one person did damage to another willfully or
intentionally without a just cause or excuse.
• Creation Of New Torts: This theory is also supported
by the creation of new torts by courts of law. For
example:-
1. Tort of deceit in its present form had its origin in
Pasley v. Freeman (1789) 3 TR 51
2. Tort of inducement of breach of contract had its
origin in Lumley v. Gye (1853) 2 E & B 216.
3. The tort of strict liability had its origin in Rylands v.
Fletcher (1868) LR 3 HL 330.
4. The tort of intimidation in Rookes v. Barnard (1964)
1 All ER 367.
• From the above mentioned cases it is clear that the
law of tort is steadily expanding and that the idea of
its being in a set of pigeon-holes seems to be
untenable.
• Winfield’s Theory And Indian Judiciary: Indian
judiciary has also shown a favour to Winfield’s
theory. In the words of Justice BHAGWATI, C.J.,
we have to evolve new principles and lay down
new norms which will adequately deal with new
problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking
to be constricted by reference to the law as it
prevails in England…
• we are certainly prepared to receive light from
whatever source it comes but we have to build
our own Jurisprudence. In the same case the
Supreme Court of India established the concept
of ABSOLUTE LIABILITY in place of strict liability
[Ref. case- M.C. Mehta v. Union of India, AIR
1987 SC 1086].
• It Is Law Of Torts: Salmond on the other hand,
preferred the second alternative and for him, there is
no law of tort, but there is law of torts. According to
him the liability under this branch of law arises only
when the wrong is covered by any one or other
nominate torts. There is no general principle of
liability and if the plaintiff can place his wrong in any
of the pigeon-holes, each containing a labelled tort,
he will succeed. This theory is also known as ‘Pigeon-
hole theory’. If there is no pigeon-hole in which the
plaintiff’s case could fit in, the defendant has
committed no tort.
• According to Salmond, just as the criminal law consists
of a body of rules establishing specific offences, so the
law of torts consists of a body of rules establishing
specific injuries.
• Supporters of This Theory:
• Professor Dr. Jenks favoured Salmond’s theory. He
was, however, of the view that Salmond’s theory does
not imply that courts are incapable of creating new
tort. According to him, the court can create new torts
but such new torts cannot be created unless they are
substantially similar to those which are already in
existence.
• Heuston [Editor of Salmond’s Torts] is of the
view that Salmond’s critics have misunderstood
him.
• Professor Glanville Williams wrote: To say that
they can be collected into pigeon-holes does not
mean that those pigeon-holes may not be
capacious, nor does it mean that they are
incapable of being added to.
• Criticism of Salmond’s Theory.
• Professor Dr. Jenks while supporting Salmond’s
theory observed that the court can create new
torts but such torts cannot be created unless they
are substantially similar to those which are
already in existence. Dr. Jenks’s view does not
appear to be correct as for example:-

·In Rylands v. Fletcher (1868) LR 3 HL 330 a new

tort i.e. strict liability was created which was not
substantially similar to any existing tort.
• Conclusion: Winfield made a modification in his
stand regarding his own theory. He thought that
both his and Salmond’s theories were correct,
the first theory from a broader point of view and
the other from a narrower point of view. In the
words of Winfield, from a narrow and practical
point of view, the second theory will suffice, but
from a broader outlook, the first is valid.
• It is thus a question of approach and looking at
the things from a certain angle. Each theory is
correct from its own point of view.
Mental Elements in Torts
• Malice
• Intention
• Motive
Malice
• Malice in the popular sense means spite or ill will.
• But in law, malice has two distinct meanings:
1) intentional doing of a wrong and
2) improper motive.
• In the first sense, Malice is synonymous with
intention. In the second sense, Malice refers to the
motive and in this sense it includes not only spite or ill
will but any motive which the law disapproves.
• According to Bayley J. Malice in common acceptation
means ill will against a person, but in its legal sense it
means wrongful act, done intentionally without just
cause or excuse.
• The word wrongful imports the infringement of some
right, that is some interest which is the law recognizes
and protects.
• A wrongful act, done knowingly and with view to its
injurious consequences, may be called malicious.
• But such malice derives its essential character from
the circumstances that the act is intentionally done
and constitutes a violation of the law.
• Malice is of two kinds:
1. Malice in law
2. Malice in fact
• Malice in Law: means a wilful act done without just
cause or excuse and it is known as malice in law.
• Malice in fact : means improper or evil motive.
• Malice in the sense of improper motive is entirely
irrelevant in the law of tort.
• It emphasizes here that the unlawful act does not
become lawful merely because the motive is good.
Similarly, a lawful act does not become wrongful because
of an improper, bad or evil motive or malice.
• Bradford Corporation v. Pickals, (1905) AC 239
• The defendant made certain excavations over his own
land as a result of which the water, which was flowing
in unknown and undefined channels from his land to
the adjoining land of the corporation was discoloured
and diminished. It was done by the defendant with
the motive to coerce the plaintiffs to purchase the
defendants land at the high price. In this case the
damage was caused maliciously but at the same time,
the defendant was making a lawful use of his own
land. It was held by the House of Lords that the
defendant was not liable.
• Exceptions to the rule
1. Defamation: in certain cases of defamation, when
qualified a privilege or fair comment is pleaded as a
defense, motive becomes relevant. The presence of
malice or evil motive negatives good faith and the
defendant cannot avoid his liability by the defense of
qualified privilege.
2. Malicious conspiracy or Malicious prosecution : one
of the essentials to be proved by the plaintiff is
malice on the part of the defendant.
3. Causing of personal discomfort by an unlawful
motive may turn an otherwise lawful act into
Motive
• Motive is that state of human mind which inspires him
to do an act. A wrongful act is always an inspiration to
do an act.
• Motive is generally irrelevant in tort law, just like
intention. Motive leads to intention formation, which
is the ultimate cause. Motive is the ultimate object
with which an act is done, while the immediate
purpose is the intention.
• Example: boy stealing bread loaf from a bakery.
• The cause that moves individuals to induce a certain
action is a motive, in law, especially criminal law.
Typically, the legal system allows motive to be proven
to make plausible reasons for committing a crime for
the accused.
• However, motive is not essential for a tort action to be
maintained. It is not just because the motive is good
than a wrongful act becomes legal. Similarly, due to
an improper, evil motive or malice, a lawful act does
not become wrongful.
• Allen v. Flood, (1898) AC 1.
• Facts : Flood and Walter was a shipwright who was
employed on a ship, liable at any time to be discharged. As
they had worked for a rival employer, fellow workers
objected to their employment. Allen was a trade union
representative on the vessel for the other employees and
approached the employers, telling them that the other staff
would strike if they did not discharge Flood and Walter.
Consequently, the employers discharged Flood and Walter
and refused to re-employ them where they would otherwise.
Flood and Walter brought the action to induce a contract
breach in a malicious way.
• Held:
• The decision was, finding that Allen had not infringed
any Flood and Walter’s legal rights. There was no legal
right for them to be employed by the employer and
Allen did not perform an unlawful act and did not use
any unlawful means to obtain the dismissal of the
employee. Allen was found to have represented what
would happen to the employers if they continued to
work with Flood and Walter. He relied on what he
believed was going to happen, and he was believed by
the employers. This was not regarded as an
obstruction or disturbance of any right: it was not the
procurement of any infringement of rights.
• The conduct of Allen was not actionable, although his
motive might be malicious or bad.
• Exceptions : there are some exceptional cases where
motive is relevant as an ingredient: in torts of
defamation, nuisances and conspiracy, malicious
prosecution.
• Indian courts have also spoken about motive non-
relevance as well as malice in tort. In Vishnu Basudeo
V. T.H.S Pearse[ AIR 1949 NAG 364] and
Town Area Committee V. Prabhu Dayal[ AIR 1975 All 132],
the courts held that it is to be seen if the act is lawful,
then the motive for the act is of little significance.
Intention
• According to Salmond intention means the object or
purpose for which the act is done.
• In intention the wrongdoer has full knowledge of the
consequences of the act, which he wants to achieve.
• It is difficult to know the intention with which the act
is done.
• Intention can be determined by the conduct of the
person who does the act.
• Motive and intention are generally used in the same
sense.
• But both differ from each other:
Motive is the ulterior object for which an act is done
whereas intention is the immediate and apparent
object for which the act is done. Example: thieves
immediate object may be to steal others money but his
ulterior objective maybe to purchase food for himself.
For example, A, steals a loaf of bread from B’s bakery
shop. A is liable for theft as well as for illegal trespass,
though A’s motive was to feed his starving child, not to
cause loss to B.
• In the law of torts the liability is determined on the
ground that every person knows the natural
consequences of his act.
• Intention is irrelevant in law of tort. If a person is
injured by the act of the defendant then he will be
liable, even though his intention might not be too
cause injury to that person.
• Wilkinson v. Downston, (1897) 2 QB 57
• The defendant joked that her husband had encountered an
accident and had been admitted to a hospital. She was
shocked by this news and fell seriously ill. She subsequently
sued the defendant for damages under tort. The defendant
claimed he never wanted to harm the plaintiff, but only cut
a joke. The court dismissed his claim, holding him liable.
Here, the court observed that mere intention was not an
essential factor in tort. The defendant was aware of the
natural and probable consequences of his act which caused
the plaintiff to suffer damage. He was therefore liable,
whether he intended to do so or not.