Law of Torts

Nature and Scope

Definition
• A tort is a civil wrong, independent of contract, giving
rise to a civil remedy, for which compensation is
recoverable.
• It is an act or omission which prejudicially affects a
person in some private legal right.
Tortum/Tortus
• The word “tort” is derived from the Latin term tortum, to twist,
and implies conduct which is twisted or tortious.
• “Tort” has been derived from Latin word “tortus” which means
“twisted,” “crooked.”
• In its original and most general sense, “tort” is a wrong.
• A civil injury for which an action for damages does not lie is not a
tort
• The principal aim of the law of torts is compensation of the victim
or his dependents.
• Grant of exemplary damages in certain cases will show that
deterrence of the wrong doer is also an additional aim of this
branch of law.
The definition attempted by
Salmond is as follows

A tort is 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 trust or other merely equitable obligation
According to Winfield the attempted
definition is as follows:
• Tortious liability arises from the breach of a duty
primarily fixed by law, this duty is towards persons
generally and its breach is redressable by an action for
unliquidated damages.
An analytical definition is to be found
in Sir Frederick Pollock’s Law of Torts
• Every tort is an act or omission (not being merely the
breach of a duty arising out of a personal relation, or
undertaken by contract)
• which is related in one of the following ways to harm
(including interference with an absolute right, whether
there be measurable actual damage or not) suffered by
a determinate person:
• (a)it may be an act which, without lawful justification or
excuse, is intended by the agent to cause harm, and does
cause the harm complained of;
• (b)it may be an act in itself contrary to law, or an omission of
specific legal duty, which causes harm not intended by the
person so acting or omitting;
• (c)it may be an act violating an absolute right (especially
rights of possession or property), and treated as wrongful
without regard to the actor’s intention or knowledge;
• (d)it may be an act or omission causing harm which the person
so acting or omitting to act did not intend to cause, but might
and should with diligence have foreseen and prevented;
• (e)it may, in special cases, consist merely in not avoiding or
preventing harm which the party was bound absolutely or
within limits, to avoid or prevent.
Well accepted throughout the world
• Tort principles as evolved throughout the world whether
through common law or statutory enactments become
available to courts in India under the doctrine of
“justice, equity and good conscience”.
• This is by virtue of the declaration in
section 9 of the Code of Civil Procedure, 1908 which
enables the courts to entertain all suits of civil nature
• further supported by the doctrine of civil courts’
inherent powers.
• This branch of law is founded upon morality.
• The word tort in English Law can be said to be a synonym for "delict"
Which means a violation of the law; a tort.
• "delictum" in Roman,
• "delits" in French,
• "delitti" in Italian
• "delittos" in Spanish.
How tort travelled to England
• Prior to William the Conqueror's 1066 Norman conquest of England, the legal system
was rather chaotic, steered on a case-to-case basis.
• Post 1066, after the Norman conquest, fines for illegality were directed to be paid
directly to the courts or the King, instead of intermediaries and this process quickly
became a source of strong revenue generation.
• A wrong came to be known as a tort or trespass, and a distinctive line was drawn
between civil petitions and pleas to the Crown, the later mostly encompassing penal
provisions
• After the Norman conquest, once French became the primary language in England's
judiciary, it saw many of English law's technical terms having their origin to French, of
which tort' is one.
• The term ‘tort’ is based on the concept that there are certain rights for all in the society.
• The purpose of this atrocity law is to enforce rights and duties (not arrised from
contract)
Development in India
• The Law of Torts is based on the principles of ‘Common Law‘ which is
primarily the English Law of Torts.
• The law of tort is selectively enforced in Indian courts if it suits the
circumstances of the Indian society.
• In India, the term tort has existed since the pre-independence period.
• Tort did not have such an important beginning under Hindu law and
Muslim law compared to English law.
• Most of the laws of tort in India is adopted from the English law of Torts.
• However, the Indian courts before making any application of the laws
adopted from the English law of torts see whether it is compatible with
Indian culture and circumstances.
• Using the English law in India has thus had a distinctive application.
Indian legal system’s habet
• Predominantly, in the Indian Legal system, punitive and
corrective remedies are more in vogue than compensation
for wrongs.
• In India, the English Law of Torts has undergone a
synthetic Indianization assuaging to the principles of
Justice, Equity and Good Conscience which has remained the
fundamental philosophy of the country's codified legislative
system.
Charter of 1726
• In India, the origin of torts is related to Charter of 1726. Under
charter 1726 the English courts were established in three
presidencies i.e. Bombay, Calcutta and Madras which were
known as ‘Mayor courts’.
• These courts were working under ‘Common law’ ,in India also
the common law was made applicable
• Law of torts was being considered an inseparable part of the
common law.
• This was made applicable in India in this reference but due care
was taken that it applied as per the conditions, customs and
traditions of India.
Slow development in India
• In view of the above, the stability of the law of torts in India is
due to English law.
• Since 1726, this law is made applicable in Indian courts, but
the process of development of it is very slow.
• The reasons for it are as follows: –
1. The Law is Not Codified: – The main reason for the slow
development of the law of torts in India is that is not codified. Due to
this, there is always a problem of uncertainty in front of the court. It is
very difficult to decide which action comes under tort and which are not
torts. The decisions of courts are generally based on precedents.
2. Ignorance of Law: – The second cause is ignorance of the law. People are
not aware of their legal rights. Most people are illiterate and are unaware of
their rights. This is the reason that they do not move to courts for justice even on
violation of their rights.
3. Poverty: – Poverty has also distant the development of the law of torts. A
number of people do not approach the Court due to poverty. They keep silence
tolerating humiliating experience of extradition and tannery.
(But now the efforts are made so that a person may be deprived of justice due to
the reasons of poverty. Arrangements for free legal assistance have been made
in paragraph 39(A) of the constitution. Now the conception of public interest
litigation is also contributed in forwarding the applicability of the law of torts.)
4. Lack of Political Will Power: – The formation of adequate law and
their implementation are not willfully desired by the political
representatives, which is also restricted the development of the law of
torts.
5. Expensive and Delaying Judicial System: – The process of
Judiciary system is very expensive and takes a long time in panting
decision.
MC Mehta v. Union of India AIR 1987 SC 1086

• Justice Bhagwati said: –

• We have to develop new theories and create new norms that
will adequately deal with the new problems arising in a
highly industrialized economy.
• We cannot allow our judicial thinking to be constructed in
terms of law as it is prevalent in England or in any other
country for that matter.
• We are of course ready to receive light from any source, but
we have to create our own jurisprudence.
Jay Laxmi Salt Words (P) Ltd vs State Of Gujarat 1994 SCC (4) 1

• Justice Sahai:
• Truly speaking entire law of torts is founded and structured on
morality that no one has a right to injure or harm others intentionally
or even innocently.
• Even for social development, orderly growth of the society and
cultural refineness, the liberal approach to tortious liability by courts is
more conducive.
• Thank You