3. MEANING AND NATURE
★ The law of Torts is one of the most important branches of law, which owes its
origin to the common law of England.
★ Its well developed in U.K, USA and other advanced countries. But in India its still in
the process of development.
★ Unlike other branches of law law of torts is not codified.
★ The term “Tort” is of French origin. It is derived from the Latin word “Tortum”
which means Twisted or a crooked act.
4. DEFINITIONS
★ Tort is a wrongful act committed by
a person, causing injury or damage
to another, thereby the injured files
an action in civil court for a remedy
of unliquidated damages or
injunction or restitution of
property or any other available
relief.
★ Unliquidated damages means the
amount of damages to be fixed or
determined by the court.
★ The person who commit a Tort is
called “Tortfeasor” or wrongdoer.
★ The person who suffered an injury
or damage is called injured or
aggrieved.
5. DEFINITIONS
WINFIELD
“Tortious liability arise from the
breach of a duty primarily fixed
by law, this duty is towards
persons in general and its
breach is redressable by an
action for unliquidated
damages.”
SIR JOHN SALMOND
“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”.
6. Objects of Law of
Torts
1. Afford compensation.
2. Shifting of loss to person who caused it or to the
beneficiary.
3. To protect the interests and rights of a person
like, property, person and reputation.
4. To provide appropriate remedy for violation of
rights.
7. Definition of
Tort
Salmond – Tort is civil wrong, for which the remedy is an action for
unliquidated damages in common law and which is not exclusively the breach
of trust or other merely equitable obligation.
Winfield – Tortious liability arises from breach of duty primarily fixed by law,
this duty is towards persons generally and its breach is redressable by an action
for unliquidated damages.
Street – Tort is a civil wrong. It is concerned with those situations where the
conduct of one party causes or threatens to harm the interest of others.
Burdick – An act or omission which unlawfully violates a persons right created
by law and for which appropriate remedy is a common lawaction for damages
by the injured person.
8. WHAT ALL CONSTITUTE WRONG ?
★ The expression wrong is of two kinds
❖ Public Wrong and
❖ Private Wrong
❏ All offences/ acts that are identified
to be punishable under IPC, 1860 are
called crimes or public wrongs and
are tried in criminal courts.
❏ The rest of the offences are called
private wrongs and are tried in Civil
Courts.
Wrong takes place in two ways:
★ Commission of an Act
★ Omission of an Act
9. Commission of an Act
Omission of an Act
Eg. Negligent surgery done
by a doctor resulting in
death of patient.
I.e Commission of an Act
that ought not be done.
Eg. Nurse omitted to give
Oxygen to a patient &
resulted in death of the
patient.
I.e Omission of an Act that
ought to be done.
11. TORT AND CRIME
TORT
★ PRIVATE WRONG
★ THE PERSON WHO COMMIT TORT
IS CALLED TORTFEASOR/ WRONG
DOER.
★ THE PLACE OF TRIAL IS CIVIL
COURT.
★ REMEDY IS UNLIQUIDATED
DAMAGES OR OTHER EQUITABLE
RELIEFS.
★ TORT CASES ARE
COMPOUNDABLE.
CRIME
★ PUBLIC WRONG
★ THE PERSON WHO COMMIT CRIME
IS CALLED OFFENDER OR CRIMINAL.
★ PLACE OF TRIAL IS CRIMINAL
COURT.
★ REMEDY IS TO PUNISH THE
OFFENDER.
★ CRIMINAL CASES ARE GENERALLY
NOT COMPOUNDABLE EXCEPT AS
OTHERWISE PROVIDED IN CRPC.
13. TORT AND BREACH OF CONTRACT
TORT
★ RIGHTS AND DUTIES IN TORT
ARE CREATED BY LAW.
★ IT IS A VIOLATION OF RIGHT IN
REM i.e. against world at large.
★ REMEDY IS CIVIL ACTION FOR
UNLIQUIDATED DAMAGES,
RESTITUTION OF PROPERTY,
INJUNCTION ETC.
BREACH OF CONTRACT
★ RIGHT AND DUTIES IN A CONTRACT
ARE CREATED OUT OF AN
AGREEMENT BETWEEN THE PARTIES.
★ IT'S A VIOLATION OF RIGHT IN
PERSONAM. I.e against only parties to
the contract.
★ REMEDY IS CIVIL ACTION FOR
SPECIFIC PERFORMANCE OF THE
CONTRACT OR LIQUIDATED
DAMAGES.
14. Development of Law of Torts in
India
6. Inability of the wrongdoer to pay
The law of Torts in India is based on the English Law of
Torts. It is made applicable in India as per the circumstances.
Development of Law of Torts in India is very slow because…
1. The Law of Torts is uncodified law.
2. Apathy of legal system.
3. Lack of right consciousness.
4. Habit of tolerance.
5. Delayed judicial proceeding.
15. LAW OF TORTS IN INDIA
M.C MEHTA VS. UNION OF INDIA
AIR 1987 SC 1086
(OLEUM GAS LEAKAGE CASE)
UNION CARBIDE CORPORATION VS
UNION OF INDIA (1991) 4 SCC 584
(BHOPAL GAS LEAK DISASTER CASE)
17. Is it Law of Tort or Law of Torts?
• Writers and authorities on torts have expressed divergent views
as regards the correct nomenclature of this branch of law
and argued whether the correct terminology is Law of Tort
or it is Law of Torts? There are two propositions advanced on
this issue, one supported by Salmond and the other by
Winfield.
18. Law of
Torts
• According to Salmond it should be called “law of torts” as there is no law
of tort. According to him the liability under this branch of law arises only
when the wrong is covered by any one or other nominate torts.
• There is no general principle of liability and if the plaintiff can place
his wrong in any of the pigeon-holes, each containing a labelled tort,
he will succeed.
19. LAW OF TORT Vs. LAW OF TORTS
1ST THEORY - LAW OF TORT
★ Propounded by Sir Frederick Pollock and
supported by Prof. Winfield. “Law of Tort”
★ “All injuries done to another person are torts
unless there is some justification recognised
by law”.
★ Eg. If i injure my neighbour, he can sue me in
Tort, whether the wrong happenes to have a
particular name like assault or battery or
whether it has no specific title at all and I shall
be liable if I cannot prove a lawful justification.
★ This theory enables the court to create new
torts to provide remedy to every injured party.
2ND THEORY - LAW OF TORTS
★ Propounded by Salmond. “Law of Torts”.
★ “ There are definite number of torts and
outside these torts no tortious liability
arises”.
★ Unless the damage suffered could be
brought under a recognised head of
liability, there was no remedy.
★ Salmond’s view was supported by
another eminent jurist, Sir Frederick
pollock.
★ This theory is also known as “Pigeon -
hole theory”.
20. PIGEON - HOLE THEORY
Law of Torts can be described as a “neat set of pigeon -
hole, each containing a specific labelled Tort”.
If there is no pigeon-hole in which the plaintiff’s case could fit
in , then the defendant has committed no tort.
This theory limit the number and regulate the frequent
creation of new torts by the courts.
According to this theory, the law of torts consists of a set
of pigeon holes, each hole contains a specified tort. If the
wrong doesn’t fit in any of these pigeon holes, then no
tort is said to be committed.
21. Support
• Professor Jenks: According to him new torts can be created provided they are
substantially similar to those which are already in existence and fit into one or
the other pigeon hole.
• Dr. Glanville Williams observed “to say that the tort law can be collected into
pigeon-holes does not mean that those pigeon-holes may not be copious, nor
does it mean that they are incapable of being added to.”
22. Landmark Cases
• In Bollinger v. Costa Brava Wine Co. Ltd. (1960) ch.262, Danckwerts
J
.said ‘ the substance was that before a person can recover for loss which
he suffered from another person’s act, it must be shown that his case falls
within the class of actionable wrongs.’
23. Criticism
• The case of damnum sine injuria quoted by Sir John Salmond do not
really support his theory. It does not in the least follow that, because
all unjustifiable harm is tortious, all harm is tortious, or that anyone
who has been harmed by his neighbor can go into a law court within
the confident expectation of being accorded a remedy.
• The case of Rookers v. Barnard, apparently established a new tort
called intimidation.
24. Law of
Tort
• By Winfield – Law of Tort – General Liability: all injuries done to
another person are torts, unless there be some justification recognized by
the law
• Therefore, this theory conveys that torts not merely consists those torts
which have acquired specific names, but also includes the wider
perception that all unjustified harm is tortious.
25. Landmark Cases
• Chief Justice Holt in Ashby v. White, where he observed that if a man will
multiply injuries, action must be multiplied too; for every man who is injured
ought to have a recompense.
• Pratt C.J. in Chapman v. Pickersgill, held, “tort are infinite various, not
limited or confined.”
• Supporting Dr. Winfield’s theory Pollock holds that new torts can undoubtedly be
created by Courts. Illustrating his point further he stated that deceit as a tort in the
present form has its origin from the decision in Pasley v. Freeman.
26. Conclusion
• Winfield made a modification in his stand regarding his own theory. He
thought that both his and Salmond’s theories were correct, the first
theory from a broader point of view and the other from a narrower
point of view.
• On the whole, if we are asked to express our preference between two
theories, in the light of recent decisions of competent courts we will have
to choose the broader theory of liability.
