What is Law of torts

This article is written by shubham sharma , law student, chander prabhu jain college of
higher study and school of law , he discuss the whole concept of law of tort

● Meaning of torts

In general words Torts means ​ any wrong done by a citizen or a 

person, who may be unintentional, which results to damages 
such as: 
 
1. Death, 
2. personal injury, 
3. property damages, 
4. nervous shock, 
5. breach of contract or 
6. any consequential loss. 
  
​ nd gives rise to a cause of action and for which the appropriate
A
court have the right to award compensation or pass a decision
against that wrong.
The word tort is derived from the latin vocabulary ‘tortum’ which
means twisted, crooked or wrong

According to ​Salmond​ , the famous jurist on the subject torts

defines Torts as a civil wrong which is not exclusively on the
breach of contract or breach of a trust or other merely equitable
obligation for which the remedy is a common law action for the
unliquidated damage( in ​jay laxmi salt work vs state of gujarat
[JT (1994) 3 S.C 492]
 ❏ Law of torts is a body of law which focuses on the granting and
denying claims of individuals and legal person for whom the
damage is done by the any other person or any legal person
● Nature of the law of torts

When we considered the nature of torts of law an interesting question

arises that
➢ does a law of torts consist a particular or specific rules which is
prohibiting certain types of wrong or harmful activity and the
remaining activity would comes out of the sphere?
➢ or does it consist fundamental general principle for all wrongful
activity which cause harm to other person ?

○ Salmond given his view and maintained that there is no english

law of torts there is a merely a english law of torts, according to
him law of torts only consist a specific no. of rules which is
prohibiting certain harmful or wrong act ,
○ it means there is a list of act and omissions that is specifically
well defined and no general law are actionable in court of law
○ And only these specified act or omission would entertained by
the court of law
○ According to salmond for his evidentiary statement just as there
is a specified law for crimes like theft , murder , forgery etc
that why there has specific rule for torts and the other wrongs
falls outside the law of torts
○ Afterwards the eminent jurist sir frederick pollock gives his
strong support to salmond and further introduced the theory of
pigeon holes rules which stated that the law of torts must
consist of a neat set of pigeon holes , means law of torts is
specifically described by the particular rules and whatever kind
of wrong comes out the established rules it's not count as a tort
 ○ And approved in the old english case​ allen vs flood(1898 A.C
1)
○ However both the theories of salmond the sir frederick pollock
theory pigeon holes been criticised by the other writers that
court is strictly bound to recognised the new torts or providing
relief because the categories of liabilities in torts would be
closed and its observed in one english case torts are infinitely
various and not limited or confined[ ​Ashby vs White ​]

○ All the injuries done to another done to another person are

amounting to torts unless there is some justification recognised
by law that is said by ​sir winfield
○ After support of sir winfield theory and also pointed out that the
court from time to time recognised new torts which said by the
tortuous act no specific name given earlier
○ After 1964 house of lord confined the existence of law of torts
for example a cyber tort which is unheard of the decade ago but
now it count as a tort , this creation clearly shows that the
category of torts are never closed
○ In ​mc mehta vs union of india AIR 1987 SC 1086 ​ the sc
stated that the indian court will not hesitate to developing new
principle on law of torts because of its expanding or growing
nature .
● Types of wrongs

In the above whole statements we are talking about the wrong but the
wrong divided in two part
1. Public wrong​ ; these are the act which entertained by the
criminal court , its criminal in nature and affected the society
2. Private wrong​ ; these are the act which is entertained by the
civil court, if affect the individual or a person with a community
● In law of torts only private wrong would be settle
There three main ingredient which make tort are :
1. ​Wrongful act :
○ the first essential ingredient of tort that the defendant should have
committed a wrongful act ,
○ An act is wrongful if it invades any of the private right like his
reputation , his property , his freedom and security etc
○ And that wrongful act should be contrary to the right and justice which
may be of two kind
1. Moral or natural wrong that the wrongful act contrary to the rule
of natural justice
2. Legal wrong means an act which is violation of the law
○ In order to make a person liable for a tort he must have done some
legal wrong
○ In ​Municipal Corporation of Delhi v Subhagwanti​ [ AIR 1966 SC 1750]
where the Municipal Corporation, having ownership and control of a
clock tower in the heart of the city, does not keep it in proper repairs
and the failure to do of the same results in the death of number of
persons, the Corporation would be liable for its omission to take care
○
2. Legal remedy:
○ Second ingredient of the tort that wrongful act resulted in
injury should give rise to a legal remedies
○ A tort is a civil injury but all civil injuries are not tort so the
wrongful act must comes under the described category of
wrongs for the remedies for damage

3. Legal damage :
○ Legal damage means an invasion of a person legal right
○ Legal Rights of a person denotes a capacity residing in
one person of controlling the actions of others with the
assent and assistance of the state to ensure a
 harmonious living as a member of the society. They are
those rights conferred by the State on all its citizens.
There are two types of Legal rights, viz, public rights and
Private rights.
○ Public rights are those which belong in common to all
members of the state. Example: Public peace, Public
safety etc.,
○ Private rights are vested in persons in general by virtue of
law. It can be further divided into two types, namel

i.Right in Personum is a right which one person can

enforce on another specific person.

Example : Rights of parties to a Contract

ii. Right in rem is a private right that a person is entitled to

against the society as a whole, and is not limited to against any
specific person.

Example: Right to property, Right to reputation, Right to etc.

So wherever there is an infringement of a private legal right,

there arises a possibility of a damage. This is best explained by
the latin maxim “Ubi jus ibi remedium”, meaning – Where there
is a damage, there must be a remedy.

● Characteristics

1) Civil wrong .
A tort is a civil wrong unlike crime , breach of contract or breach of

trust .

2) Infringement of a right in rem .

Tort is an infringement of right in rem and not right in personam . A

right in rem is a right which is available against the whole world . As

for example , one’s right not to be assaulted or defamed is a right in

rem .

3) Right fixed by law .

The right infringed in tort should not be a right based on consent of

the parties but it should be a right fixed by law .

4) Common Law action .

The remedy available in tort should be a Common Law action . The

Common Law action is also actionable in India .

5) Remedy .
 Remedy of a tort should be damages or compensation in money . But

the other remedies such as injunction , restitution of land , ejectment

of trespasser are also available .

● Difference between tort and crime

Tort
1. A ​tort is private wrong . its infringnment of a private or civil right
belonging to a individual
2. A wrong doer has to pay the compensation to the injured party
3. In a tort the suit filed by the injured party himself
4. In a tort code of civil procedure would be applied
5. Tort proceeding held in civil court

Crime
1. Crime is an violation of public right and act affect the whole society
2. In a crime a wrong dore would be punished by the state and in some
cases court may order a person convicted to pay the sum of money
to the injured party
3. In a crime the proceedings are generally taken by in the name of the
state also conducted
4. In a crime criminal procedure code would be applied
5. Crimes proceedings held in a session or criminal court

● Difference between tort and contract

Tort
 1. Nature of the right infringed : ​tort is basically voilation of the right of
rem , means right is exercisable agaimst the whole world
2. Duty: ​once the duty is imposed by law is owed to the whole society
3. Consent: ​In a tort consent plays a independent role , it may be
inflicted by consent or not
4. Damages : ​damage is not limited or fixed also a man may be liable
for more than one damage
Contract
1. Nature of the right of infringed : ​contract is infringment of right of
personam ie right is exercisable against a individual
2. Duty:​In a case of the contract once the duty is written in the will or
deed it owed to the parties
3. Consent: ​in a contract there is a obligation for the consent
4. Damages: ​the measure of damage is determined by the stipulation
between the parties

● Damnum and injuria

● There are two terms which is important and plays a important

role in law of torts thats is .. ​damnum and injuria
● Damnum is meant damage in a general aspect but as a layman
understand it , this may be a loss of money, physical hurt , loss
of health and service or etc
● Injuria is meant injury or legal injury
● The term injuria may or may not be accompanied by the
damnum if it is accompanied by the damnum(injuria sine
damnum)in order make a person liable by law but if not then
the person is not liable by law (damnum sine injuria)

Damnum sine injuria

○ Damnum sine injuria means damage without injury or legal
injury
 ○ Actual and the substantial loss without the infringement of legal
right would not be liable for the filing a suit
○ General principle is that the exercising the one common right in
a reasonable limit does not give rise to an action in a tort merely
because it cause some damage to other person reason behind
that statement that the it would be impossible to exercise their
common right without causing loss or inconvenience to other
○ No suit can be filed against Free and fair competition as it
does not amount to injury [​gloucester grammar school case ​]
○ In a case of​ ushaben trivedi & others vs bhagyalaxmi chitra
mandir & others​ the court held that the court of law have not
recognised hurt in a religious feeling as a civil actionable wrong
, it was therefore held that no legal right was infringed
○ Breach of legal provision due to the misinterpretation does not
give rise to an action in tort [ ​V.D.sharma vs board of high
school and intermidiate education & other AIR 1981 ALL
46​]
○ There is nothing a legal wrong for using a ex husband title even
after the dissolution of the marriage ​[earl cowley vs countess
cowley ]
Injuria sine damnum

○ This maxim is just reverse of the maxim discuss above

○ It refers to the injury without damage
○ There is an infringement of legal right , the person in whom the
right is vested is entitled to bring an action and may recover
damages
○ There a tort is actionable although it has not been the cause of
any actual damage
○ Actual damage need to be proved, there would be sufficient
evidence
○ However in case ​ashby vs white, (1703) 2 ld raym. 938 ​in this
leading case the officer at voting booth, wrongfully and the
 maliciously refuse to register duly vote of the plaintiff however
no actual loss was suffered by plaintiff but the court held that
the suit was allowed on the ground that the violation of the
plaintiff statutory right was injured for which he must have
remedy
Who can sue
Tort is the legal wrong which one person or entity commit against the
another person or entity for which the remedy available for damage it
means sue can be done by any person or any legal entity whom legal right
is violated by the any person or any legal entity but there are some
exceptions which have no right to sue in tort
1. An alien enemy : alien enemy is any person of enemy
nationality or any person residing enemy terrtory . so in india
alien enemy cannot sue except he obtain the permission of the
central goverment under sec 83 of civil procedure code
2. Felons or convicts : felon or convict is any person against whom
the judgement of death or any punishment has been passed or
pronounceed
3. Bankrupt : bankrupt is also restricted to sue for wrong in respect
of his property because during hus bankrupcy all his property
vested to the trustee
4. Husband and wife : In earlier english law wife can not sue for
her husband whether its on the her legal right or any property
right beacuse of its notion that husband and wife is a one
person but its change in 1962 drastic change had come but in
india the notion of the legal identity of husband and wife does
not apply
5. Corporations : a corporations cannot maintain action for
personal wrong
6. A child in a womb : an infant can sue for any commited tort by
his guardian but cannot maintain injury for en venture sa mere (
when he was in his mother womb )
 7. Lunatic and drunkard : a person who is sane at the time of
injury would be liable for sue

Foreign tort
Foreign tort means a tort which is committed in abroad or the
cause of action arisen in a foreign country

● There are two type of foreign tort

1. A tort to reality : an injury to property or land
situated outside the india ie immovable property , in
india any suit cannot be filled in respect of any injury
of immovable property which is situated outside
india
2. A personal tort : an injury of a person or any
movable property , in india for filing a suit in india
the injured person have to satisfied the following
three condition
● The defendant should be in india
● The act should be unlawful in the
country where it was committed
● The act should be actionable under the
law of india