DEFINITION OF TORTS AND DEVELOPMENTS IN TORTS

~AUTHOR: MOLIKA BANSAL, Ist YEAR STUDENT AT SYMBIOSIS LAW SCHOOL

NOIDA

ABSTRACT
Tort law, an essential component of the legal framework, addresses civil wrongs and seeks to
provide remedies for individuals harmed by the actions or inactions of others. This paper
delves into tort law, its characteristics, and its historical development. It explores the
influence of judge-made law in shaping the principles of tort law, emphasizing its flexibility
and adaptability to evolving societal needs. Additionally, it examines the subtle distinction
between the "law of tort" and the "law of torts" and their respective applications in legal
discourse. Through the perspectives of legal scholars and philosophers, this paper navigates
the intricate landscape of tort law, elucidating its multifaceted nature and enduring
significance in civil justice.

KEYWORDS: Torts, civil wrongs, civil liability, legal rights and compensation,
uncodified law

INTRODUCTION
Tort law, a foundational pillar of the legal system, plays a pivotal role in addressing civil
wrongs and providing remedies for individuals who have suffered harm or injury due to the
wrongful actions or omissions of others. The development of tort law over the years has been
marked by significant evolution, adapting to the changing dynamics of society and its legal
needs. This body of law has its roots in principles that extend beyond the confines of
contracts and trusts, encompassing a wide range of legal obligations and remedies. This paper
explores the essence of tort law, its characteristics, and its evolution, shedding light on the
significance of judge-made law in shaping its contours. It also examines the nuanced
distinction between the "law of tort" and the "law of torts" and their contextual usage.
Through an exploration of various perspectives and definitions by legal scholars and
philosophers, this paper provides an in-depth understanding of the multifaceted nature of tort
law.

OVERVIEW
Definitions of Torts by Various Philosophers:
According to Salmond, a "tort" is a civil wrongdoing for which the remedy is a common law
action to claim damages that is not exclusively related to the breach of a contract or trust, or
other equitable obligations.
Winfield defines "torts" as liability arising from breaching a duty primarily established by the
law, which is generally owed to individuals and can be remedied by a legal action seeking
unliquidated damages.
Pollock's contribution to the definition is that a "tort" is an act or omission, not just a breach
of a duty arising from personal relations or contractual obligations, which leads to harm a
specific person suffers, resulting in a civil remedy other than a contract-related action.
Faeser defines "tort" as an infringement upon a private individual's right in rem, entitling
them to compensation through legal action.
Peter Brick's definition states that "tort" is the violation of a legal duty that affects an
individual's interests significantly enough for them to complain on their behalf rather than as
a representative of society.
Burdick defines "tort" as an act or omission that unlawfully violates a person's legal right,
created by law, and for which the appropriate remedy is a common law action seeking
damages by the injured party.
Keeton and Keeton define "torts" as a body of law dealing with granting or denying claims
of individuals or legal entities against each other for damages or other legal relief.
American Jurist Edward Kionka describes "tort" as an elusive concept involving someone
suffering harm due to another's action or failure to act. Tort law is not codified and remains
largely unaffected by statutes.
The Supreme Court of Canada, in the case of Hall v Herbert, emphasized the difficulty in
defining torts, suggesting that it is best understood by what it is not, distinguishing it from
criminal and contractual law. Lord Denning of The House of Lords succinctly defines the
province of tort as allocating responsibility for injurious conduct.
Section 2(m) of the Limitation Act of 1963 defines "torts" as civil wrongs that are not
exclusively breaches of contracts or trusts.
In the book "Street on Torts" by John Murphy and Christian Witting, "tort" is described as
a branch of civil law concerning obligations imposed by law on all natural and artificial
persons. These obligations, owed from one person to another, involve norms of conduct that
arise outside of contracts and unjust enrichment. Tort allows the person to whom the
obligation is owed to seek a remedy on their behalf when a breach of a relevant norm of
conduct infringes on their interests, as recognized by the law.
The highlighting characteristic of tort law:
1. Civil Nature of Torts: Torts are civil wrongs, and it's essential to distinguish them from
criminal wrongs. Unlike criminal law, where the state prosecutes wrongdoers, in civil law,
individuals must initiate legal actions themselves. In tort cases, there are no criminal
punishments involved. Instead, compensation is typically awarded in the form of unliquidated
damages, which means that the exact amount is not predetermined as it is in criminal cases.
2. Infringement of Rights in Rem and Rights in Persona: There are two types of rights:
rights in rem and rights in persona. Rights in rem are universally applicable and can be
asserted against anyone who violates them. This is a fundamental aspect of tort law, allowing
individuals to seek remedies against anyone who infringes upon their rights, even if there's no
pre-existing relationship.
3. Torts Address Violations of Legal Rights: Tort law exclusively deals with violations
related to legal rights. While a person may suffer economic or social losses, tort law is only
concerned with breaches of legal rights. For example, in the Gloucester Grammar School
case, a school's revenue decreased due to the opening of a new school nearby. However, since
no legal right was violated, the existing school had no legal recourse under tort law.
4. Maxims Damnum Sine Injuria and Injuria Sine Damno: These legal principles
illustrate the importance of legal injury in tort cases. Damnum Sine Injuria implies that there
may be damage or loss, but if there's no legal injury, no legal right is violated, and therefore,
no legal action can be taken. Conversely, Injuria Sine Damno suggests that even if there's no
physical harm or damage, a legal injury or violation of legal rights can warrant legal action.
The Ashby v. White case exemplifies this concept, where a voter's legal right to vote was
violated, leading to damages and compensation claims.
5. Compensation as the Remedy: Tort law provides remedies primarily in the form of
compensation, typically awarded as damages. Unlike contract law, where damages are often
pre-determined or specified in contracts, tort law calculates damages based on the actual
losses suffered. In criminal law, punishment is typically in the form of imprisonment, while
tort law aims to restore parties to their original positions through compensation.
6. Recognition of Rights by the Government: To seek remedies in tort law, the rights
violated must be recognized by the government. These rights cannot be self-declared or based
on prior consent between parties. The government must acknowledge the existence of a duty
owed by the defendant, which was breached, and this breach must have directly led to the
losses suffered for a legal claim to succeed.
7. Reliance on Precedents: Tort law heavily relies on precedents, meaning that previous
court decisions and judgments play a vital role in shaping and interpreting the law. Unlike
codified laws with written statutes and acts, tort law does not have a specific legislative
framework. Instead, it evolves through case law and judicial decisions, making judicial
precedents the primary source of guidance.
8. Uncodified Nature of Tort Law: Unlike criminal and contract law, which are codified
with written statutes that can be amended by legislative bodies, tort law is uncodified. It
needs a comprehensive legislative framework and relies on evolving case law and common
law principles. Changes and developments in tort law can occur without direct government
intervention.
Tort law deals with civil wrongs, primarily involving legal rights violations, and seeks to
provide remedies, typically in compensation, based on precedents and common law
principles. It distinguishes itself from criminal and contract law because it focuses on civil
redress for legal injuries.
Development in Torts:
The law of torts in India is a relatively recent and evolving law requiring comprehensive
codification under a unified framework, guided by the principle of "ubi jus ibi remedium,"
which means "where there is a right, there is a remedy." This area of law in India draws
heavily from the principles of English common law. Its application within Indian courts is
selective and contingent upon its suitability for the specific circumstances prevailing in
Indian society.
Uncodified and Judge-Made Nature:
Even after the establishment of the Indian Constitution, the law of torts in India remains
uncodified. It is primarily a product of judicial decisions, making it judge-made law. Judges
have played a pivotal role in shaping and advancing the principles of tort law in India.
Advantages:
The uncodified and judge-made nature of tort law in India offers certain advantages. It
provides flexibility, allowing the law to adapt to changing societal conditions. The judiciary
can develop new tort law principles to address emerging situations. This flexibility ensures
that tort law remains relevant and effective in modern times.
Disadvantages:
However, this uncodified and judge-made approach can also lead to uncertainties and
unpredictability. Since the principles of tort law evolve through judicial decisions, it becomes
challenging to anticipate how a court will rule in a particular case. This unpredictability can
hinder individuals and businesses in planning their actions and making informed decisions.
In summary, tort law in India is primarily judge-made and uncodified. The benefit of this
system lies in its flexibility to accommodate changing circumstances. Nevertheless, it suffers
from the drawback of unpredictability due to its reliance on judicial decisions.

Examples of Judge-Made Law in Indian Tort Law:

Within the realm of tort law in India, some instances of judge-made law include:
- Strict Liability: The principle of strict liability, as seen in the Rylands v. Fletcher case, holds
individuals responsible if they bring something onto their property that poses a risk to others,
irrespective of negligence.
- Vicarious Liability: This principle establishes that employers can be held liable for torts
committed by their employees during the course of employment.
- Contributory Negligence: This principle reduces a plaintiff's damages proportionally if they
contributed to their injury through their actions.
- Negligence: The core concept of negligence states that those owing a duty of care to others
must exercise that care. A breach of this duty that results in harm can lead to liability.
These are a few examples of judge-made law within the context of torts in India. The law of
torts in India primarily evolves through judicial decisions, with the Indian judiciary playing a
significant role in its development.
Development in tort law over the years has been marked by significant shifts and
advancements in legal principles, doctrines, and remedies. These changes have been
influenced by evolving societal norms, changing economic landscapes, and judicial decisions
that adapt the law to contemporary challenges.
One notable development has been the expansion of the concept of duty of care. Originally,
the duty of care in negligence cases was relatively narrow and primarily applied to situations
with direct physical harm. However, over time, courts have extended the duty of care to cover
a wide range of scenarios, including economic loss, psychiatric harm, and even harm caused
by pure omissions. This expansion has allowed tort law to better address the complexities of
modern life and the various ways individuals and entities can be responsible for the well-
being of others.
Another significant development in tort law has been recognizing and expanding vicarious
liability. Vicarious liability holds employers responsible for the wrongful acts of their
employees committed in the course of their employment. This principle has evolved to cover
a broader spectrum of relationships and circumstances, including situations involving
independent contractors and non-profit organizations. As a result, victims of tortious conduct
have more avenues for seeking compensation from parties with the means to fulfill their legal
obligations.
Additionally, developments in tort law have emphasized the importance of alternative dispute
resolution mechanisms, such as mediation and arbitration, in resolving tort disputes. These
methods offer more efficient and cost-effective ways of settling claims while reducing the
burden on the court system. Overall, the evolution of tort law reflects the ongoing efforts to
balance individual rights and responsibilities in an ever-changing legal landscape.

Significance of Judge-Made Law in Indian Tort Law:

Judge-made law holds significance in Indian tort law for several reasons:
- Flexibility: Judge-made law is adaptable to changing circumstances, allowing the legal
system to respond to emerging issues effectively.
- Responsiveness: It can address the evolving needs of society, ensuring that the law remains
relevant.
- Development: Judge-made law has been a driving force behind the development of tort law
in India.
- Interpretation: Judges can use judge-made principles to interpret statutes in line with tort
law principles.
- Clarity: It can provide clarity and guidance regarding the application of tort law in India,
helping to define its scope and boundaries.
In summary, judge-made law is significant in Indian tort law due to its flexibility,
responsiveness, role in development, interpretative function, and its ability to provide clarity
in legal matters. Judge-made law allows the legal system to adapt and address the evolving
needs of society effectively.

Difference between Law of Tort and Law of Torts

The terms "law of tort" and "law of torts" are often used interchangeably, but there can be
some nuanced differences in their usage depending on the context. Here's a breakdown of
these terms and their potential distinctions:
1. Law of Tort:
 - Singular Form: "Law of tort" refers to the overarching legal framework or body of law
that deals with civil wrongs or wrongful actions that result in harm or injury to others.
- General Concept: It encompasses the fundamental principles, doctrines, and rules that
govern civil liability for harm caused by one person's actions or omissions to another person.
- Often Used in Academic or Theoretical Discussions: "Law of tort" is commonly used in
academic or scholarly discussions to refer to the abstract concept of tort law as a whole,
discussing its historical development, philosophical underpinnings, and theoretical aspects.
- May Emphasize Universal Aspects: When using "law of tort," the focus may be on the
universal principles and common elements that are found in tort law systems worldwide.

2. Law of Torts:
- Plural Form: "Law of torts" refers to the specific branches or categories within tort law,
each dealing with distinct civil wrongs or torts.
- Subdivisions of Tort Law: It represents the various categories or divisions of tort law, such
as negligence, trespass, defamation, nuisance, and more.
- Practical Application: "Law of torts" is used when discussing specific legal issues, cases,
or situations within tort law, emphasizing the practical application and specific rules
associated with different torts.
- May Emphasize Specific Legal Rules: When using "law of torts," the focus may be on the
individual elements, legal tests, and case law related to particular torts.
While the "law of tort" tends to be more abstract and encompassing, referring to the entire
field of civil wrongs and its theoretical aspects, the "law of torts" is more specific,
emphasizing the distinct categories or branches within tort law and their practical application.
However, the usage of these terms can vary, and in many contexts, they are used
interchangeably without significant differentiation.

Landmark cases which have set the basis of Law of Torts:

Tort law is a crucial area of jurisprudence that deals with civil wrongs, providing a
framework for individuals to seek legal remedies for harm caused by others. This field has
evolved through various landmark cases, each contributing to the development and expansion
of principles that guide legal decisions.

Donoghue v. Stevenson (1932) - Doctrine of Negligence and Neighbour Principle

Donoghue v. Stevenson is a landmark case that established key principles in tort law,
particularly the doctrine of negligence and the Neighbour Principle. This case transformed the
landscape of liability for manufacturers and set a precedent for holding parties responsible for
negligence, even in the absence of a contractual relationship.
Doctrine of Negligence: Prior to Donoghue v. Stevenson, liability for negligence typically
required a pre-existing contract between the parties. This case marked a significant shift by
establishing negligence as a tort in itself. It stated that if a plaintiff suffers injuries or property
loss due to the defendant's negligence, they are entitled to seek legal action. The defendant is
then liable to compensate for the harm suffered. This was a pivotal departure from the
previous requirement of a contractual agreement.

Neighbour Principle: The Neighbour Principle, as formulated by Lord Atkin in Donoghue v.

Stevenson, expanded the boundaries of the tort of negligence. It stated that individuals owe a
duty of care not only to those they have contractual relationships with but also to anyone who
may foreseeably be affected by their actions. This principle introduced the concept of
"neighbour" in legal terms, defining it as anyone directly impacted by one's actions. Proper
care must be taken to prevent injury or loss to such neighbours. This principle allowed
individuals like Donoghue, who were not parties to the contract, to claim damages for
negligence-related injuries.

Rylands v. Fletcher (1868) - Strict Liability

Rylands v. Fletcher is a seminal case that established the doctrine of strict liability in tort law.
This principle holds individuals liable for harm caused by their actions, regardless of whether
they were negligent or not. The case set specific criteria for the application of strict liability:

1. Defendant's Control: The defendant must have brought something onto their land, which
did not naturally occur there.
2. Non-Natural Use of Land: The use of the land must be non-natural, such as storing large
quantities of water.
3. Likely to Do Mischief: The substance brought onto the land must be likely to cause harm if
it escapes.
4. Escape: The substance must escape from the land.
5. Foreseeability: The harm resulting from the escape must be foreseeable.

Defendants may raise several defenses, including consent, the act of a third party, statutory
authority, acts of God, and the claimant's fault, to avoid strict liability.

Gloucester Grammar School Case (1410) - Damnum Sine Injuria

The Gloucester Grammar School case introduced the principle of "Damnum Sine Injuria" to
tort law. This Latin term means "injury without damage." The case highlights that not all
injuries or harm result in legal wrongs or entitlement to compensation. In this case, even
though the plaintiff suffered financial losses due to the competition posed by a nearby school,
there was no legal injury as the defendant's actions did not infringe upon any legal rights.
This case emphasizes that not all moral, social, or economic wrongs are necessarily legal
wrongs.

Vaughan v. Taff Vale Railway Company (1858) - Statutory Exemption from Negligence

Vaughan v. Taff Vale Railway Company illustrates the concept of statutory exemption from
the doctrine of negligence. In this case, the plaintiff sought compensation for damages caused
by the defendant's negligence. However, the court upheld the defendant's immunity because
their actions were authorized by statute. This case underscores the principle that when a
statute requires a person or entity to perform a particular activity, they are exempt from
liability for negligence when acting in accordance with that statute.

Kasturi Ralia Ram v. The State of Uttar Pradesh (1964) - Rex Non Potest Peccare

The case of Kasturi Ralia Ram v. The State of Uttar Pradesh invokes the principle of "Rex
Non Potest Peccare," which translates to "the king can do no wrong." In this context, it means
that when actions are taken by public servants in the course of their duties, they are immune
from liability for negligence. Even if the actions result in harm or loss to individuals, the state
is not liable as long as the actions were within the scope of their official duties. This case
reinforces the principle of sovereign immunity.

Bhim Singh v. The State of Jammu and Kashmir (1985) - Injuria Sine Damnum and False
Imprisonment

The Bhim Singh case introduces the principle of "Injuria Sine Damnum," meaning "injury
without damage." This principle recognizes that individuals can seek legal remedies for the
violation of their legal rights, even when no actual harm or damage has occurred. In this case,
Bhim Singh's right to vote was infringed when he was falsely imprisoned, and he was entitled
to compensation, despite no actual harm caused by the denial of his vote.

Ashby v. White (1703) - Injuria Sine Damnum

Ashby v. White is a historic case that emphasizes the principle of "Injuria Sine Damnum."
This principle signifies that legal injury, or the violation of a legal right, is sufficient to
initiate a tort claim, even if no actual damage or financial loss is incurred. In this case, Mr.
Ashby's right to vote was unlawfully denied, constituting a legal injury that entitled him to
seek compensation.

Hall v. Brooklands Auto Racing Club (1933) - Volenti Non Fit Injuria

The case of Hall v. Brooklands Auto Racing Club underscores the principle of "Volenti Non
Fit Injuria," which translates to "to one who is willing, no wrong is done." This principle
acknowledges that individuals who willingly expose themselves to known risks inherent in
certain activities cannot later claim compensation for injuries resulting from those risks. In
this case, spectators attending a motor racing event voluntarily placed themselves in a
position of risk near the track, and the club was not liable for injuries caused by the inherent
dangers of the activity.
Ram Ghulam and Anr. v. The State of Uttar Pradesh (1949) - Defence of Sovereign Power

Ram Ghulam and Anr. v. The State of Uttar Pradesh exemplifies the application of the
defense of sovereign power in tort law. This defense holds that actions carried out by the state
or its agents in the exercise of sovereign authority, as mandated by law, are not subject to
liability for negligence. In this case, the police's seizure and subsequent loss of the plaintiff's
property were considered part of their lawful duties, absolving them from liability.
Tort law stands as a testament to the enduring pursuit of justice in civil society. Its evolution
over the years has demonstrated its resilience in the face of societal transformations and
complex legal challenges. This body of law, rooted in principles of equity and fairness,
continues to provide a framework for addressing civil wrongs, ensuring that individuals
wroTortave a path to seek redress and compensation. The uncodified nature of tort law,
coupled with the influence of judge-made law, grants it the flexibility to adapt to changing
circumstances and remain relevant in contemporary times.

Furthermore, the distinction between the "law of tort" and the "law of torts" highlights the
diverse facets of this field, from theoretical underpinnings to practical applications. As tort
law continues to evolve and adapt, it remains an essential pillar of the legal system,
safeguarding the rights and interests of individuals in their interactions with one another. Tort
law exemplifies the adage "ubi jus ibi remedium," reminding us that where there is a right,
there must also be a remedy, ensuring that justice prevails even in the face of civil wrongs.

REFERENCE
1. http://student.manupatra.com/Academic/Abk/Law-of-Torts/chapter1.htm
2. Definition of Torts and its characteristics (ipleaders.in)
3.