These content are helpful to understand Law of Torts for LL.B courses.

1. By
Dr. Ashutosh Kumar Srivastava
Assistant Professor
Faculty of Law
University of Delhi
Mobile 9079298265
Contact;legalsolutions01@gmail.com

2. •Law of Torts have origin from England
•Before the Norman Conquest (A.D.1066)The state of
English Law was Primitive and rudimentary.
•During this period distinction between Crime and Tort
was not Recognised.
•The Law was mainly concerned with the payment of
Pecuniary composition and Private composition.
•After Norman conquest , During strong rulers ,instead of
permitting composition of private wrongs court were
established to punish all form of violence,

3. •Distinction between civil wrong and criminal wrong was
not yet recognised.
•The famous action or writ of trespass was introduced in
13th century .
•This writ was at its inception both civil and criminal and
ended in damages as well as punishment..
•Early common Law was concern mainly with the remedies
and not with rights.
•Before passing the judicature Act , proceeding in the
common Law courts were called an action

4. •Success of an action depend upon availability of writs.
•Thus if no writ is available, action would be fail even
though it was otherwise justified.
•In course of Time common Law Courts allowed action of
Trespass on case for new kinds of wrongs such as
defamation , nuisance ,deceit, malicious Prosecution ,
conversion of goods, etc.
•Example Ashby vs. White. Case on right of voting.
•Concept of Right and remedy developed.
•Ubi jus ibi remidium means where there is right there is
remedy.

5. •The origin of word tort may be traced to the Latin word
Tortum which means twisting out.
•In Law its mean wrong or injury having certain
characteristic.
•There is no fully satisfactory definition of Tort, but various
jurist pointed out their views.
•Clerk & Lindsell have defined the Tort as a wrong
independent of contract , for which the appropriate remedy
is common Law action.
•Section 2(m) of Limitation Act 1963, “ Torts means a civil

6. Tortious Liability arises from the breach of duty
Primarily fixed by Law , This duty is towards persons
genererally and its breach is redressible by an action
for unliquidated Damages.
Breach of Duty
Primarily fixed by Law
This duty is towards persons genererally
Breach of Duty is redressible by an action for
unliquidated Damages

7. Breach of Duty
Primarily fixed by Law
This duty is towards persons genererally
Breach of Duty is redressible by an action for unliquidated
Damages
P vs D
 why

8. 1-Breach of Duty
Tortuous Liability arises only when there is breach of duty.
There must be pre existing Legal Duty of defendant
towards plaintiff
The question of Tortious Liability can arise only when there
is breach of Legal duty.
P VS D
Ex.
p

9. 2-Primarily fixed by Law
The duty which the defendant has towards the plaintiff is
independent of agreement of consent of parties.
It is essential element of tort which distinguishes it from
Contractual Liability, or Liability arising out of a bailment.
There may be some cases where tortious liability may be
dependant upon some prior consent of defendant
In tort content of duty is fixed by law while the content of
contractual duty is fixed by contract itself.

10. 3-This duty is towards persons generally
In tort duty is towards people generally since tortious
duties are not dependent or subject to consent or
agreement of parties , duties are not merely towards
particular or specific person but they are towards people
generally.
Examples: 1. we have a duty not to defame others
2. Not to trespass upon the land of others.

11. 4-Breach of Duty is redressible by an action for
unliquidated Damages ‘
Action for unliquidated Damages is no mean the only
remedy for a tort ‘ it is one pretty sure test of tortious
Liability.
Now it is essential to differentiate between liquidated and
unliquidated damages
Where the plaintiff in an action sues for predetermined
and inelastic sum of money , he is claiming liquidated
damages.
But where plaintiff seeks to recover such an amount as

12. Winfield states tortious duty is primarily fixed by Law ,
Criticism : In some cases some prior consent of
defendant is needed .
Towards people Generally, - who are these not explained
by winfield.
Definition is purely procedural on which only a
professional lawyer can give advice.
Unliquidated damages is not the only remedy of Tort.

13. Tort is a civil wrong for which the remedy is common
law action for unliquidated damages, and which is not
exclusively the breach of contract, or breach of trust ,
or other merely equitable obligation.
According to this definition there are four classes of
wrongs .
Wrongs which are exclusively criminal
Civil wrongs which creates no right of action for
unliquidated damages , but give rise other form of civil
remedy exclusively.

14. Civil wrong which are exclusively breaches of contract.
Civil wrong which are exclusively breach of trust
 of some other merely equitable obligation.
Although Tort is a civil injury but not all civil injuries are
Tort
For no civil injury is to be classed as a tort unless the
appropriate
Remedy for it is an action of damages .

15. A crime is generally consider as an offence against the
community
It is breach and violation of public right and duty.
Crime is a wrong for which common remedy is
punishment, while for tort is unliquidated damages.
Tort is private civil wrong, may be against a person while
crime is public wrong , Means against the whole society.
Tort harms individual , while crime harms to whole society.
P.Rathiram / Nagbhushan Patnayak vs. Union of
India,air.1994.

16. A tort is a civil wrong which is not exclusively breach of
contract , while A contract is an agreement Enforceable by
Law.
Difference In terms of Liability
In Tort- Tortious Liability
In Contract –contractual Liability.

17. Difference in Terms of Duty.
In Tort duty is towards Persons generally while in contract
duty is towards a specific person or persons.

18. Difference in Terms of Remedy
For Tort remedy is an action of unliquidated damages while
, in contract remedy id liquidated damages .
A contract can not confer any right on one who is not a
party to contract , it can not confer to stranger to contract.
Contract in personam.

19. The plaintiff, a news agent and tobacconist carrying on
business at Canonbury, entered into an arrangement with
the defendants that they should supply him with a
tradesman’s tricycle,
A tricycle with a large carrier in front, for use in the delivery
of newspaper. The arrangement was embraced in a written
contract dated Apr. 13, 1948.
The contract was on a printed form used by the
defendants, on which their name appears in print, and the
agreement is stated to be made between them (described
as the owners) and the plaintiff, who is described as the
hirer.

20. By cl. 1: “The owners agree to let, and the hirer agrees
to hire, Carrier Cycles Nos. 13409 for the term of three
years from the date hereof (and thereafter from year to
year) at the weekly rent of 5s each payable quarterly in
advance at the owners above address, the first payment
being due on delivery of the machines.”
By cl. 2: “In consideration of such sum the owners
agree to maintain the machines in working order and
condition (punctures excepted) and to supply spare
carriers as soon as possible when the hirer’s machines
are being repaired without any charge beyond the

21. the owners supplied a machine which was used by the
plaintiff for a considerable period, and which, so far as we
know, was kept in order until towards the end of May, 1950,
when the machine, which was in the plaintiff’s possession
under the contract, was in need of repair, and the owners
were so informed.
On Saturday, June 3, a representative of the owners went
to the plaintiff’s shop and left a spare tricycle instead of that
which was out of order, which he took away.
In so doing, the owners were purporting to perform their
obligation under cl. 2 of the contract.

22. The plaintiff did not examine the tricycle, but very soon
mounted it to go about his work. When he had gone about
a quarter of a mile the saddle went forward in such a
manner that he was thrown off the tricycle on the ground,
and was injured.
He said he got up and pushed the tricycle back to his shop,
the saddle then sloping down on to the crossbar, and when
he examined the tricycle he found that the saddle was
loose. He was not thought, at first to be badly hurt, but
unfortunately he had suffered an injury to his knee. He was
in hospital for some considerable time suffering form
synovitis.

23. PARKER. J. who heard the plaintiff’s claim, said that, if he
had found the plaintiff entitled to damages, he would have
awarded £505. That was a provisional assessment and no
more.
The evidence given by the plaintiff and by his wife, and by
a young man named Anthony employed by the plaintiff,
seemed to show that the tricycle was out of order in that
some nuts under the seat were rusty and could not be
moved.

24. Anthony, the chief witness, whose evidence impressed the
judge on that point was not employed by the plaintiff at the
time of the trial, but was engaged on delivering
newspapers and the like for the plaintiff in June, 1950. He
told the judge that after hearing of the accident, he saw the
tricycle, and the saddle had been tilted back. He said that
on several occasions thereafter he used the tricycle, and
the saddle used to slip backwards and cause him to lose
control.
He tried to tighten the nut, but it was too rusty to move.

25. The plaintiff set up two causes of action against the
owners.
 The first was that the owners were responsible to him in
damages for breach of warranty. It was said that they were
under a duty under the contract to supply a tricycle which
was reasonably fit for the purpose for which it was
required, that they did not do so, and that the plaintiff was
entitled to damages.
Liability in contract
Due to breach in contract

26. You, the persons from whom I had this tricycle, owed a
duty to take reasonable care, i. e. to take that care which a
reasonably careful tricycle owner would take on the hiring
to another of a tricycle for his use, and you failed in that
duty.
If you had examined the tricycle, you would have found
that the nuts were rusty and that the saddle was loose.
I used the tricycle in the way in which it was intended that I
should use it, and I sustained an accident because you
had not fulfilled your duty. You had not taken reasonable
care, you were negligent, and I am entitled to damages.

27. They added a plea in para 4 of the defence:
By cl. 11 of the written agreement between the parties the
(owners) are not liable for any personal injuries to the
plaintiff when riding a machine provided for him.
Clause 11 of the agreement is: Nothing in this agreement
shall render the owners liable for any personal injuries to
the riders of the machines hired nor for any third party
claims nor loss of any goods, belonging to the hirer, in the
machines.

28. It is conceded by counsel for the plaintiff that that clause
would prevent the plaintiff from succeeding on a claim
based on breach of contract, but his submission is that, in
the circumstances proved, there was negligence on the
part of the defendants, and that clause is no bar to an
action for damages for negligence.
The plaintiff submitted that, though cl. 11 relieves the
owners in respect of a claim for breach of contract arising
from the agreement, it does not absolve them if there is a
cause of action established on the ground of negligence.

29. Counsel for the owners submits that, if there was
negligence, it was negligence in connection with the
performance of the contract, that the machine which was
supplied was supplied in performance of the obligation
arising under the contract and that what was done was
under the agreement.

30. Lord Macmillan in M’ Alister (or Donoghue) v. Stevenson
[(1932) AC 609].
Taylor v. Manchester, Sheffield & Lincolnshire Ry. Co.
[(1895) 1 Q.B. 140],
A. L. Smith, L.J., said: It is clear that a person lawfully
upon railway premises may maintain an action against a
railway company for injuries sustained whilst there by
reason of the active negligence of the company’s servants,
whether he has a contract with the company or not.

31. Sir Frederick Pollock, Law of Torts. 13th ed. p. 570. “that
there has been (though perhaps there is no longer) a
certain tendency to hold that facts which constitute a
contract cannot have any other legal effect.”

32. In the present case, there are two possible heads of
liability on the owners, one for negligence, the other for
breach of contract. The liability for breach of contract is
more strict than the liability for negligence. The owners
may be liable in contract for supplying a defective machine,
even though they were not negligent. In these
circumstances, the exemption clause must, I think, be
construed as exempting the owners only from their liability
in contract, and not from their liability for negligence.

33. In my opinion the claim for negligence in this case is
founded on tort and not on contract.
That can be seen by considering what would be the
position if, instead of the plaintiff himself, it was his servant
who had been riding the tricycle and had been injured. If
the servant could show that the owners had negligently
sent out a defective machine for immediate use, he would
have had a cause of action in negligence on the principle
stated in M’ Alister (or Donoghue) v. Stevenson and, as
against the servant, the exemption clause would be not
defence. That shows that the owners owed a duty of care
to the servant.

34. A fortiori they owed a like duty to the hirer himself. In
either case, a breach of that duty is a tort which can be
established without relying on any contract at all. It is
true that the hirer could also rely on a contract, if he had
wished, but he is not bound to do so, and if he can avoid
the exemption clause by framing his claim in tort he is,
in my judgment, entitled to do so.

36. Facts of the case
P vs d

37. Defendant does not owed a duty of care towards plaintiff
Plaintiff , could not succeeded in his case

39. TO CONSTITUTE A CASE OF Tort following element
must be present –
1. A wrongful act committed by defendant
2. The wrongful act must result in legal damage/ legal
right violate to another person
3. the wrongful act must be of such a nature as may
give rise to a legal remedy in the form of an action
for damages.

40. common law action in due course of time

41. Wrongful act committed by defendant must result in
legal damage.
Legal Damage takes place when there is a breach of
legal duty or
When plaintiff’s right recognised by law is infringed
Determination of Legal Damage
1. Injuria sine damno = injury without legal damage
2. Damnum sine injuria = legal damage without injury

42. Injuria means infringement of right ( conferred by law to
plaintiff )
Sine means without
Damnum means actual damage or loss
If a private right is infringed the plaintiff have a cause of
action even though the plaintiff has not suffered any actual
loss or damage
a vs w

43. Damnum means actual damage or loss
Sine means without
Injuria means infringement of right ( conferred by law
to plaintiff)
No action will lie if there is damage /loss but there has
been no infringement of legal right

44. A tort is a civil wrong for which the remedy is an action for
un-liquidated damages
An action of tort , therefore , is usually a claim for
pecuniary compensation in respect of damages suffered
as a result of invasion of legally protected interest.

46. For describing the nature there are two views
1. Salmond
2. Winfield

47. According to salmond there are some definite types of
tort
Instead of these definite tort there are no any tortious
liability arises
So no damages can be granted
Salmond’s –pegion hole theory
Already defined by the previous common law courts and
recognised as a tort.

48. N
D
MP
NG

49. Every wrongful act is tort , even for which English court has
not given any damages yet .

50. William says : both salmond and winfield not succeed in
explain the nature of tort
The reality is in-between the two
Salmond –rule of absence
Winfield –rule of presence
(jj) HOLT HAS GIVEN ANSWER OF THIS CONFLICT
UBI JUS IBI REMIDIUM = RIGHT & REMIDY
Article 32 of the constitution of India

51. Plaintiff – attendance was short so the result was
Withold by board
AFTER SOME TIME – RESULT DECL. – SECOND DIV.
PASS
HE LOST HIS ONE YEAR, due to all
HC : JJ-SINHA –