• Lex Specialis

Definition, Nature and Scope of Law of Torts

Rabi Ananth


Have you ever thought about where you will file a case, when you found stepped into a broken electrical line or when a random person out of the blue splash water into your face? These are typical examples of tort. The tort is an old uncodified law in the common law system. The Honourable Supreme Court, on numerous instances, pointed out the need to codify the law of torts. The principle of the law of torts could also be found in various new legislations.


The word Tort is imitated from the Latin word “Tortum,” meaning “to twist.” Thus, tort means “conduct which is not straight or lawful, but on the other hand, twisted, crooked or unlawful.” The parallel word in English is wrong. Tort is defined by many legal scholars, some important definition about tort are,

· Sir John Salmond defines tort 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.”

· Sir Hugh Fraser defines “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.”

· The Limitation act of 1963 defines “Tort means a civil wrong which is not exclusively a breach of contract or trust.” This is almost similar to the definition of Sir John Salmond.

· Sir Henry Winfield defines “Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

He brought a new theory in the law of torts; by saying, “all injuries done to other persons are torts unless there is any legal justification.”[1] This theory directly conflicts Sir John Salmond’s idea of torts; according to Sir John Salmond, there is the only law of torts not the law of tort.

Is it the law of torts are law of tort?

This question results due to two conflicting definitions by Sir John Salmond and Sir Henry Winfield. Sir John Salmond, believed that there is the only law of torts, the liability arises only when a definite tort like trespassing, defamation, etc. are performed. There is no general principle; if the plaintiff can place his claim in any pigeon holes i.e., defined tort, he will succeed. Thus this theory is also called Pigeon-hole theory. This theory was supported by Dr. Jenks; however, he was of the view that Salmond’s theory does not imply that the courts are incapable of creating new tort, according to him the courts can create new torts but, such torts cannot be created unless they are substantially similar to those which are already in existence.[2]

But according to Sir Henry Winfield, there are no definite torts; it is a wider principle, not merely specifically defined tort forms the harm but also every unjustifiable harm is tortuous. Thus by using this theory, many new torts were formed by courts. Some examples are,

· The introduction of the tort of Strict Liability principle.[3]

· The introduction of the concept of Absolute Liability principle.[4]

· Recognizing the principle “ubi jus ubi remedium”.[5]

· The introduction of the tort of Intimidation.[6]

Later Sir Winfield changed his stand and said both his and Salmond’s theories were correct; the first theory from a borderer point of view and the other theory in a narrow point of view will suffice.[7] Thus it is a question of approach and looking at things from a certain angle. Each theory is correct from its point of view.

Nature of torts:

We may understand the nature of torts by observing the facts that,

· Tort is a civil wrong

· This civil wrong is other than a mere breach of contract or breach of trust

· This wrong is redressible by an action for unliquidated damages

a) Tort is a civil wrong

Tort is utterly distinct from a crime. It belongs to a category of civil wrong. The basic difference is in civil proceedings the plaintiff initiates the proceedings, against the defendant, and finally, damages will be awarded. Whereas, in criminal matters, the State prosecutes against the accused and the sufferer is compensated with damages rather justice is served by punishing the accused. At times it is possible that the same act done by a person resulting in both civil and criminal wrong. At that time both civil and criminal remedies would concurrently be available.

b) Tort is other than a mere breach of contract or breach of trust

Tort is that civil wrong, which is not exclusively any other kind of civil wrong, only through the elimination process that we may know whether a wrong is a tort or not. First, we have to see whether the wrong is civil or criminal; if it is a civil wrong. It has to be further seen if it exclusively belongs to any other recognized civil wrong categories, like a breach of contract or breach of trust. If it is found that it neither a mere breach of contract or any other civil wrong then it can be classified as a tort. And at times the same act constitutes two or more civil wrong ones which may be a tort.

For example, A delivers his cow to B for safe custody for a month but B allows the cow to die of starvation. Here B committed two wrong ones is a breach of bailment and another is the tort of negligence. But unlike in the previous case here the person can claim damages for any one of the wrong since both come under the civil wrong.

c) Tort is redressible by an action for unliquidated damages

In torts, the remedy often provided is unliquidated damages. After the wrong has been committed, generally, it is the compensation which may satisfy the injured party. Damages in tort are unliquidated. This fact enables us to distinguish tort from any other civil wrong, like a breach of contract or breach of trust, where the damages are liquidated, i.e., previously agreed upon or could be pre-determined. Generally, until tort is committed, the parties are not known to each other and it is impossible to prior determine the loss in case of tort.

Constituents of Law of Torts

Law of torts commonly used as a defence. The major idea behind is that in most cases of torts, the wrongdoer does not have mens rea. For example, if a patient in a hospital fell out of a window, on trial if the defendant succeeds in disproving the mens rea, then the defendant (hospital) committed the offence of tort, not a crime.[8] To constitute a tort, it is essential that the following two conditions are satisfied:

  • ·The defendant must have done an act or omission

  • ·And such act or omission must result in an injuria i.e. violation of legal rights vested in the plaintiff.

Act or Omission:

In order to make a person liable for tort, he must have omitted something which he is legally excepted to do or must have done something which he is legally not supposed to do. Either a positive wrongful act or an omission that is illegally made will make a person liable for tort.


· A gave a cow to B for safe custody for one month, but B acted negligently and failed to provide food to the cow. As a result, the cow died, here B is tortuously liable since he omitted an act which he is legally supposed to do i.e., feeding of the cow.

· A wrongfully arrests B, here A has acted in an unlawful manner. Thus A is liable for tort.

Legal Damages:

To succeed in legal action for tort, the plaintiff has to prove that there has been legal damage caused to him i.e., a wrongful act or omission causing a breach of legal duty or violation of legal right vested in the plaintiff. And the damages are of two types,

  • · Injuria sine damno

  • · Damno sine injuria

a) Injuria sine damno

The term Injuria means infringement, damnum means damages. Thus Injuria sine damno means a violation of legal right without causing damages. Ashby v. White,[9] is the leading case in explaining this maxim. In this case the plaintiff was a qualified voter at a parliament session, the defendant being a returning officer wrongfully refused to take the plaintiff’s vote. He did not suffer any loss since the candidate whom he wanted to vote won the election despite that. But by applying this principle, C.J. Holt held the defendant liable. He ruled, “Every injury imports a damage, though it does not cost the party one farthing. For damage nor merely pecuniary but an injury imports damage, when a person is thereby hindered of his right.” The Supreme Court of India took a similar view in Bhim Singh v. the State of J&K.[10]

b) Damnum sine injuria:

It means damages which is not coupled with an unauthorized interference with the plaintiff’s lawful right. However substantial, causing damages to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff. This is generally so when the exercise of a legal right by one results in consequential harm to others. In this principle, the leading case is Gloucester Grammar School case,[11] where the defendant, a school headmaster, set up a rival school to that of the plaintiffs. And as a result of competition, the plaintiff had to reduce his school fees. Thereby he suffered a loss; hence he filed a case against the defendant. The court held that the plaintiff has no remedy. The mere fact that another’s act injures a man gives itself no cause of action; if the action is deliberate, the part injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right. [12]


Thus the law of torts is entirely distinct from any other field of law. Tough its development in India is not significant while comparing with developed nations like U.S.A., U.K. it is reshaped across various period of time by the honourable Supreme Court of India. Day to day problems is covered in the field of law. Hence the practice of law of tort should be promoted in the future.


[1] Winfield and Jolowicz on Tort.

[2] Journal of Comparitive Legislation, Vol. XIV (1932), p. 210.

[3] Rylands v. Fletcher (1868) L.R. 3 H.L. 330.

[4] M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 1086.

[5] Ashby v. White (1703) 2 L.d. Raym. 938.

[6] Rookes v. Barnard (1964) 1 All. E.R 367.

[7] Winfield and Jolowicz, 10th ed., p. 19.

[8] Ashish Kumar Mazumdar v. Aishi Ram Batra Charitable Hospital Trust, A.I.R. 2014 S.C. 2061.

[9] Ashby v. White (1703) Lord Raym, 9338.

[10] Bhim Singh v. State of J&K A.I.R. 1986 S.C. 494.

[11] Gloucester Grammar School (1410) Y.B. Hill 11 Hen, 4 of 27, p. 21, 36.

[12] Grant v. Australian knitting mills, (1935) ALL E.R. 209


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