Origin and Development of

Law of Tort
Aishwarya Vats
Assistant Professor, UPES
Origin and Development of Law of Tort
• Chief Source-Common Law [ Part of English Law derived from customs and judicial
precedents rather than statutes]
• Development in England:
• By way of writs [ A formal written order issued by a body of
chancery[ administrative/ quasi judicial powers, now a Court]
• Each writ entailed a different set of procedures and remedies which together
amounted to the "form of action".
• Ubi Jus Ibi Remedium
• Writs were recognized form of action
• Q- “ has defendant broken some duty owed to plaintiff” , but
• Q- “has plaintiff any form of action against defendant.”
• If yes, that particular writ was issued and the plaintiff was paid accordingly, if
wrong writ issues- suit dismissed.
• Eg- Tort of Trespass committed, writ issued and compensation paid to plaintiff.
• In the early Middle Ages, the focus was on the procedure, it was the form of
one's action, not its substance, which occupied legal discussion. Modern English
law, as in most other legal systems, now looks to substance rather than to form,
a claimant need only demonstrate that he or she has a valid cause of action.
• Growth of Tort Law can be attributed to:
• Common Law Courts
• Assertiveness of victims of various harms which involved Tort action.
• The Common Law Procedure Act 1852 was enacted, which dropped
the requirement that any particular form of action should be
mentioned within a writ.
• Finally, with the passage of the Judicature Act 1873, the last vestiges
of the forms of action were removed. The flexible bill procedure of
Chancery was adopted by the common law courts. It was now only
necessary to state the facts sufficient to give rise to one's cause of
action.
Development in India
• Mayor’s Court were established by Charter of 1726 in the presidency
towns[ Calcutta, Madras and Bombay]
• Judges applied Common Law of England as found suitable to Indian
conditions.
• The Supreme Court of Judicature at Fort William, Calcutta (Kolkata)
was founded in 1774 by the Regulating Act of 1773. It replaced the
Mayor's Court of Calcutta and was British India's highest court from
1774 until 1862, when the High Court of Calcutta was established by
the Indian High Courts Act 1861.
• English Common Law was applied in original Civil Jurisdiction.
• Civil Procedure Code, 1908- S.9- Enables a Civil Court to try all suits of
a civil nature.
• Article-372 of Constitution of India- “All the law in force in the
territory of India immediately before the commencement of this
Constitution shall continue in force therein until altered or repealed
or amended by a competent Legislature or other competent
authority.”