Law of Torts

3/25/2021
Law of Torts
Md. Golam Kibria
1 (Senior District Judge)
Director (Training)
Judicial Administration Training Institute
 LAW OF TORTS
The Law of Torts is not a codified
Legislation. It is not an enactment.
It derives from English common
law and guided by the principle of
equity, Justice and good
conscience.

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The expression "justice, equity and good
conscience" was interpreted by the Privy
Council to mean "the rules of English law if

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found applicable to Indian society and
circumstances". " The law as stated above is also

Law of Torts
the law to be administered by each of the High
Courts in India in the exercise of its appellate
jurisdiction. It has also 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." 3
The law of torts or civil wrongs in India is thus almost
wholly the English law which is administered as rules of
justice, equity and good conscience. The Indian courts,

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however, before applying any rule of English law can see
whether it is suited to the Indian society and

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circumstances. 10 The application of the English
law in India as rules of justice, equity and good
conscience has, therefore, been a selective application. II
Further, in applying the English law on a particular
point, the Indian courts are not restricted to the common
law. The English law consists both of common law and
statute law and the Indian courts can see as to how far
arule of common law has been modified or abrogated by
statute law of England
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DEFINITION OF TORT

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The term 'tort' is the French equivalent of the
English word 'wrong' and of the Roman Law

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term 'delict'. It was introduced into the English
law by Norman jurists. The word 'tort' is derived
from the Latin term tortum to twist, and implies
conduct which is twisted or tortious. 19 It now
means a breach of some duty independent of
contract giving rise to a civil cause of action and
for which compensation is recoverable.
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In spite of various attempts an entirely satisfactory
definition of tort still awaits its master. To provide a
workable definition in general terms, a tort may be
defined as a civil wrong independent of contract for

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which the appropriate remedy is an action for
unliquidated damagesv" A civil injury for which an

Law of Torts
action for damages will not lie is not a tort, e.g. public
nuisance, for which no action for damages will lie by a
member of the public. The person committing a tort or
wrong is called a tort-feasor or wrong doer, and his
misdoing is a tortious act. The principal aim of the law
of torts is compensation of victims or their dependants."
Grant of exemplary damages in certain cases will show
that deterrence of wrong-doers is also another aim of the
law of torts.
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TORT AND CONTRACT

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There is a well-marked distinction between a Contract and a Tort. A
contract is founded upon consent: a tort is inflicted against or
without consent. A contract necessitates privity between the parties

Law of Torts
to it : in tort no privity is needed. A tort must also be distinguished
from a pure breach of contract. First, a tort is a violation of a right in
rem, i.e. of a right vested in some determinate person, either
personally or as a member of the community, and available against
the world at large: whereas a breach of contract is an infringement
of a right in personam, i.e. of a right available only against some
determinate person or body, and in which the community at large
has no concern.

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The distinction between the two lies in the
nature of the duty that is violated. In the case of a tort the
duty is one imposed by

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the law and is owed to the community at large. In the case of
a contract, the duty
is fixed by the will and consent ofthe parties, and it is owed

Law of Torts
to a definite person
or persons. Thus, if A assaults B, or damages B's property
without lawful cause
or excuse, it is a tort. Here the duty violated is a duty
imposed by the law, and that
is the duty not to do unlawful harm to the person or property
of another. But if A
agrees to sell goods to B for a price, and either party fails to
perform the contract,
the case is one of a breach of contract. 8
 TORT AND CRIME

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A tort is also widely different from a crime. First, a tort
is an infringement or rivation of the private or civil rights
belonging to individuals considered as indiduals:

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whereas a crime is a breach of public rights and duties
which affect the whole community considered as a
community. Secondly, in tort, the wrongdoer has to
compensate the injured party: whereas, in crime, he is
punished by the State in the interests of society. Thirdly,
in tort, the action is brought by the
injured party:

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in crime, the proceedings are conducted in the name of
the State md the guilty person is punished by the State.
Criminal Courts are authorised within certain limits and

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in certain circumstances to order payment of a sum as
compensation to the person injured out of the fine

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imposed on the offender. 50 The cornpensation so
awarded resembles the award of unliquidated damages in
a tort action but there is a marked difference. The award
of compensation in a criminal prosecution is ancillary to
the primary purpose of punishing the offender but in a
tort action generally it is the main purpose.

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CONSTITUENTS OF TORT

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The law of torts is fashioned as "an instrument
for making people adhere to

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standards of reasonable behavior and respect the
rights and interests of one
another. This it does by protecting interests and
by providing for situations
when a person whose protected interest is
violated can recover compensation for
the loss suffered by him from the person who
has violated the same.
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It is, however, obvious that every want or desire of a
person cannot be protected nor can a person claim that
whenever he suffers loss he should be compensated by

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the person who is the author of the loss. 57 The law,
therefore, determines what interests need protection and

Law of Torts
it also holds the balance when there is a conflict of
protected interests. 58 A protected interest gives rise to a
legal right which in turn gives rise to a corresponding
legal duty. Some legal rights are absolute in the sense
that mere violation of them leads to the presumption of
legal damage.

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There are other legal rights where there is no
such presumption and actual damage is

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necessary to complete the injury which is
redressed by the law. An act which infringes a

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legal right is a wrongful act. But every wrongful
act is not a tort. To constitute a tort or civil injury
(1) there must be a wrongful act committed by a
person; (2) the wrongful act must give rise to
legal damage or actual damage and (3) the
wrongful act must be of such a nature as to give
rise to a legal remedy in the form of an action for
damages.
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PRIVATE RIGHTS

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Private rights include all rights which belong to
a particular person to the exclusion of the world

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at large. These rights are: "(1) rights of
reputation; (2) rights of bodily safety and
freedom; (3) rights of property; or, in other
words, rights relative to the mind, body, and
estate; and, if the general word 'estate' is
substituted for 'property', these three rights will
be found to embrace all the personal rights that
are known to the law".
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 PUBLIC RIGHTS

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Public rights include those rights, which belong in
common to the members of the State generally. Every
infringement of a private right denotes that an injury or

Law of Torts
wrong has been committed, which is imputable to a
person by whose act, omission, or forbearance, it has
resulted. But when a public right has been invaded by an
act or omission not authorized by law, then no action will
lie unless in addition to the injury to the public, a special,
peculiar and substantial damage is occasioned to the
plaintiff.

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To every right there corresponds an obligation or
duty. If the right is legal, so is the obligation; if
the right is contingent, imaginary, or moral, so is

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the obligation. A right in its main aspect consists
in doing something, or receiving and accepting

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something. So an obligation consists in
performing some act or in refraining from
performing an act. A servitude of passage over a
field appears as a right of walking or driving
over it by the owner of the dominant tenement.
The
duty of the servient owner is to refrain from
putting obstacles. 16
An easement of light appears as a right on the part of the
dominant owner to interdict the erection of buildings on
the servient tenement, or to remove them when erected.

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The duty
is to abstain from erecting them. The duty with which the
law of torts is concerned

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is the duty to abstain from willful injury, to respect the
property of others, and to
use due diligence to avoid causing harm to others.
Liability for a tort arises, therefore, when the wrongful
act complained of amounts either to an infringement of a
legal private right or a breach or violation of a legal duty.

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 REMEDY

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A tort is a civil injury, but all civil injuries are not
torts. The wrongful act must

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come under the category of wrongs for which the
remedy is a civil action for dam-
ages. The essential remedy for a tort is an action
for damages, but there are other
remedies also, e.g. injunction may be obtained in
addition to damages in certain
cases of wrongs.
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The law of torts is said to be a development of
the maxim ubi jus ibi remedium (there is no
wrong without a remedy). Jus signifies here the

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'legal authority to do or to demand something;
and remedium may be defined to be the right of

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action, or the means given by law, for the
recovery or assertion of a right. If a man 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 or enjoyment of it; and
indeed it is a vain thing to imagine a right
without a remedy;
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 DAMAGE

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"Damage" means the harm or loss suffered or presumed
to be suffered by a person as a result of some wrongful
act of another. The sum of money awarded by court to

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compensate "damage" is called "damages".
From the point of view of presumption of damage, rights
are classified into (1) absolute and (2) qualified. When an
absolute right is violated the law conclusively presumes
damage although the person wronged may have suffered
no pecuniary loss whatsoever. The damage so presumed
is called legal damage. Violation of absolute right is,
therefore, actionable per se, i.e. without proof of any
damage. 20
In case of qualified rights, there is no presumption
of legal damage and the violation of such rights
is actionable only on proof of actual or special

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damage. In other words, in case of an absolute
right, the injury or wrong, i.e. the tortious action,

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is complete the moment the right is violated
irrespective of whether it is accompanied by any
actual damage, whereas in case of a qualified
right, the injury or wrong is not complete unless
the violation of the right results in actual or
special damage.

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