What is a Tort?

Introduction
The word tort originates from the French language. It is
equivalent to the English word “wrong” and Romanian law’s
term “delict”. It is derived from the Medieval Latin word
“tortum” which means “wrong” or “injury” which itself was
further developed from the Old Latin word “torquere” which
means “to twist”. It is a breach of duty which amounts to a
civil wrong. A tort arises when a person’s duty towards others
is affected, an individual who commits a tort is called
a tortfeasor, or a wrongdoer. And where there are multiple
individuals involved, then they are called joint tortfeasors.
Their wrongdoing is called as a tortious act and they can be
sued jointly or individually. The main aim of the Law of Torts
is the compensation of victims.

Section 2(m) of the Limitation Act,1963, Addresses tort as

being a civil wrong which is not just exclusively a breach of
contract or a breach of trust.

Definitions by various thinkers

According to John Salmond, He addresses tort as being only a
civil wrong which has unliquidated damages (those damages
for which there is no fixed amount) in the form of remedy and
which is not just exclusively the breach of contract or the
breach of trust or breach of merely fair and impartial
obligation.

According to Richard Dien Winfield, Tortious liability

emerges from the breach of a duty primarily fixed by the law,
this duty is towards the other people generally and its breach
is redressible by an action for unliquidated damages.

According to Fraser, A tort is an infringement of a right in rent

of a private individual giving a right of compensation at the
suit of the injured party.

The law of Torts in India is a relatively new branch of

evolving clustered law which needs to be supplemented by
codifying statutes by bringing it under the ambit of one
umbrella upon the basis of the maxim ubi jus ibi remedium
which means “where there is a right, there is a remedy.”.
Improvising on the existing laws will undoubtedly strengthen
the faith of citizens, we the people of India, but will also
elevate the image of the country in the international arena of
legal fraternity.
The word Torts is derived from the Latin word ‘Tortum’
which means twisted/crooked/wrong. Tort in French
corresponds to the English word wrong and the Roman
expression delict. In a society when a person turns directly
from the normal course of conduct to a person who injures or
causes harm to another, he is considered to have committed a
tort – a conduct that is twisted or crooked. A person who
commits such devious acts is marked as a tortfeasor.
It is different from breach of contract and trust. Tort is when
the act of one party causes some harm to the other party due
to negligence, carelessness on the part of another party. The
one who sues is known as ‘plaintiff’ and the one who is sued
is known as ‘defendant’.
The concept of Law of Torts is one of the main obligations
under Civil Law. When a legally protected right is violated,
causing any harm or destruction such an act is named as Tort.
In short, a tort basically means a civil wrong. Each and every
facet of rights gives rise to a specific element of tort. The
important thing here is that the person committing a tort is
never considered guilty and he is seen only as he is liable to
the act or omission.
In Gordon vs Lee The mental object of the Law of Torts is that
people are responsible only for the consequences of their act
or omissions. The Great Jurist Salmond defines tort as a civil
wrong for which remedy is a civil law action for unliquidated
damages, and which is not exclusively the breach of contract,
or the breach of trust, or other merely just obligation.
To put it into simple words, when a wrongful act done by a
person affects our rights and causes legal damage, there arises
a remedy and such process is called the Law of Torts. Since
tort is a civil law, evident differences can be seen between a
tort and a crime as a tort is a wrongful act which constraints
the individual or his material objects while crime is actus
reus which restraints the social order of the social group we
live in. Moreover, Crime takes place mostly with an intention
to cause harm or hurt.
Origin of Tort Law
Prior to 1066, the French William the Conqueror of the
Norman conquest of England, the legal system was somewhat
disorganized, carried out on a more or less case-by-case basis.
After 1066, to assimilate the village laws that had developed
over two centuries, eminent judges were delegated to visit a
given area. These judges, benefiting from this information,
noted and applied the precepts they believed to be most
impartial in their own court’s findings. Over time, these cases
became what are now called legal precedents when referenced
often enough. The law of tort came to India via England. The
law of tort came to India via England.
After the Norman Conquest, French became the language
spoken in the judiciary of England and thus many technical
terms in English law originated from French and tort is one of
them. 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.
Evolution Of Tort Law In India
The evolution of tort law in India can be observed in three
phases namely
1. Ancient era
2. Medieval era
3. Modern era
I . ANCIENT INDIA
It was considered that the main and basic modes for the
peaceful progression of the lives of the people were the State
and the King. It was believed that a King can do no wrong.
There are several written materials which also talk about the
law and the legal foundation, liability and unsusceptibility of
the King, concept of the origin of the State, responsibilities of
the supreme towards its individuals and equitable remedy to
the smitten people through Ordeal system etc. The most
important among the various manuscripts are the Vedas,
Smritis, Sutras, Arthasashtra, , and the writings of overseas
travelers. They also tell us the liability of the State to
counterbalance the victims, aggrieved by the King’s officials
during ancient period. The concept of vicarious liability was
formulated during Vedic period in India. The King had to
protect the life and property of the people.
If any wrong occurred affecting the people, the King was
liable to make up them. Brihaspathi says where a servant
authorized by his master does any wrongful act for the welfare
of his master, the master shall be held liable for it. Thus the
concept is established that when the servant’s act is for the
welfare of the master in the due course of his employment, the
master is made liable.
.
II. MEDIEVAL ERA
It was analyzed that there was a very little progression of law
of torts in India when compared with the law of crimes when
the country was ruled by Islamic rulers such as Delhi
Sultanate, Mughal empire. The reason behind this is their
principle of n eye for “an eye and tooth for a tooth.”
III. MODERN ERA (during 18th and 19th Centuries)
The British empire brought Common Law and Tort law came
into India when the British Empire established three
presidency courts at the efforts of Sir Henry Mane and Sir
James Stephens. It tried to codify such laws 1886 through Sir
Frederick Pollock in the form of Civil Wrongs Bill which
was never passed.
During British rule, Courts in India were administered by the
Statutes of Parliament in the UK. The Indian enactments were
supposed to act based on justice, equity and good conscience
which are commonly known as the “General Principles of
Law” when there was no specific law to solve the particular
dispute in a suit. In the cases of damages for torts, courts
preceded the English common law as it was in harmony with
the general principles of law. They did not consider it when
any of its rules were found unreasonable and unsuitable to
Indian situations.
.
Development of the Law of Torts 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.
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’ full stop in India also the common law
was made applicable but the directions were made to quotes
that the common law is made applicable. In the application of
common law, in the application of common law, the principles
of equity, justice and good conscious were being followed.
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.
To deal with the malicious behavior of the people tort existed
in Hindu and Muslim law but it can be said that tort was
formally introduced by the Crown in India. It is based on the
principles of equity, justice, and good conscience. The law of
torts is based on the principles of ‘common law’ which is
mainly the English law of torts. The application of the law of
tort is an applied selectively in Indian courts keeping in mind
if it suits the circumstances of Indian society
In Naval Kishore vs. Rameshwar Nath And Ors. ( A.I.R.
1995 Allahabad 594) it was stated that the rules of law of
torts of England should be made applicable as per the Indian
atmosphere, that is, corresponding to traditions and Customs
of it.
.
Justice Bhagwati in M.C Mehta v. Union of India observed
that: “We have to evolve new principles and lay down new
norms which will adequately deal with new problems which
arise in a highly industrialized economy. We cannot allow our
judicial thinking to be constructed by reference to the law as it
prevails in England or for the matter of that in any foreign
country. We are certainly prepared to receive light from
whatever source it comes but we have to build our own
jurisprudence.”

Reasons for the slow development of law of torts 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.
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.
• 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.
• 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.
• Lack of Political Will Power: – The formation of adequate
law and their implementation are not willfully desired by
the political representatives, which is also restaurant the
development of the law of torts. The government is not
effective as it ought to be in reference to reference to law
and Justice.
•Expensive and Delaying Judicial System: – The process of
the Judiciary system is very expensive and takes a long
time to pant decision, therefore victims day to go to a quote
which is the cause of the non-development of the law of
torts.
In Jai Lakshmi Salt Works (P) Ltd vs. State of Gujarat,
Justice Sahai, R.M. held that the entire Law of Tots is
morally based and structured. Therefore, it would be primitive
to strictly shut down or eventually to the ever-expanding and
expanding horizon of tortious liability. Even for social
development, orderly development of society, and cultural
sophistication, the liberal approach to fraudulent liability by
the court would be favorable.

Objectives of a tort
1. To determine rights between the parties to a dispute.
2. To prevent the continuation or repetition of harm i.e. by
giving orders of injunction.
3. To protect certain rights of every individual recognized by
law i.e. a person’s reputation.
4. To restore one’s property to its rightful owner i.e. where
the property is wrongfully taken away from its rightful
owner.
5. Is It Law of Tort or Law of Torts: The Controversy
And Theories
6. question is generally asked in the form, “is there a law of
tort or only a law of torts?” There are two competing
theories in this regard. According to one theory, there is a
general principle that all wrongs are actionable as tort
unless there is any legal justification. The other theory
says that there is no general principle of liability as such
but only a definite number of torts as trespass,
negligence, nuisance, defamation etc. and the plaintiff
has no remedy unless he brings his case under one of the
nominate torts.

2. It Is Law Of Tort: Winfield is the chief supporter of

this theory. He says, all injuries done to another person
are torts, unless there is some justification recognized by
law. Thus according to this theory tort consists not
merely of those torts which have acquired specific names
but also included the wider principle that all unjustifiable
harm is tortuous. This enables the courts to create new
torts. Winfield while supporting this theory comes to the
conclusion that law of tort is growing and from time to
time courts have created new torts.

Supporters of This Theory: The theory given by

Winfield has been supported by many eminent Judges
both ancient and modern. Following are some examples:-

· HOLT, C.J. clearly favoured Winfield’s theory, by

recognizing the principle of ubi jus ibi remedium. He
said that, if man will multiply injuries, actions must be
multiplied too; for every man who is injured ought to
have recompense [Ref. case- Ashby v. White (1703) 2
Ld. Raym. 938].

· PRATT, C.J. said that, torts are infinitely various, not

limited or confined [Ref. case- Chapman v. Pickersgill
(1762)2 Wils 145].

· In 1893, BOWEN, L.J., expressed an opinion that at

common law there was a cause of action, whenever one
person did damage to another willfully or intentionally
without a just cause or excuse.

· LORD MACMILLAN observed that, the common law

is not proved powerless to attach new liabilities and
create new duties where experience has proved that it is
desirable [Ref.- Donoghue v. Stevenson (1932) AC 595].

Creation Of New Torts: This theory is also supported

by the creation of new torts by courts of law. For
example:-

· The tort of inducement to a wife to leave her husband in

Winsmore v. Greenbank (1745) Willes 577 (581).
· Tort of deceit in its present form had its origin in Pasley
v. Freeman (1789) 3 TR 51
· Tort of inducement of breach of contract had its origin
in Lumley v. Gye (1853) 2 E & B 216.
· The tort of strict liability had its origin in Rylands v.
Fletcher (1868) LR 3 HL 330.
· The tort of intimidation in Rookes v. Barnard (1964) 1
All ER 367

From the above mentioned cases it is clear that the law of

tort is steadily expanding and that the idea of its being in
a set of pigeon-holes seems to be untenable.

Winfield’s Theory And Indian Judiciary: Indian

judiciary has also shown a favour to Winfield’s theory. In
the words of Justice BHAGWATI, C.J., we have to
evolve new principles and lay down new norms which
will adequately deal with new problems which arise in a
highly industrialized economy. We cannot allow our
judicial thinking to be constricted by reference to the law
as it prevails in England……. we are certainly prepared
to receive light from whatever source it comes but we
have to build our own Jurisprudence. In the same case
the Supreme Court of India established the concept of
ABSOLUTE LIABILITY in place of strict liability [Ref.
case- M.C. Mehta v. Union of India, AIR 1987 SC 1086].

3. It Is Law Of Torts: Salmond on the other hand,

preferred the second alternative and for him, there is no
law of tort, but there is law of torts. 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. This
theory is also known as ‘Pigeon-hole theory’. If there is
no pigeon-hole in which the plaintiff’s case could fit in,
the defendant has committed no tort.

According to Salmond, just as the criminal law consists

of a body of rules establishing specific offences, so the
law of torts consists of a body of rules establishing
specific injuries.

Supporters of This Theory:

· Professor Dr. Jenks favoured Salmond’s theory. He
was, however, of the view that Salmond’s theory does
not imply that courts are incapable of creating new tort.
According to him, the court can create new torts but such
new torts cannot be created unless they are substantially
similar to those which are already in existence [Ref.-
Journal of Comparative Legislation, Vol. XIV (1932) p.
210].

· Heuston [Editor of Salmond’s Torts] is of the view that

Salmond’s critics have misunderstood him.

· Professor Glanville Williams wrote: To say that the can

be collected into pigeon-holes does not mean that those
pigeon-holes may not be capacious, nor does it mean that
they are incapable of being added to.

Criticism of Salmond’s Theory.Professor Dr. Jenks

while supporting Salmond’s theory observed that the
court can create new torts but such torts cannot be
 created unless they are substantially similar to those
which are already in existence. Dr. Jenks’s view does not
appear to be correct as for example:-

· In Rylands v. Flethcher (1868) LR 3 HL 330 a new tort

i.e. strict liability was created which was not
substantially similar to any existing tort.
· Again in Rookes v. Barnard (1964) AC 1027 a new tort
i.e. intimidation was created.

4. 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. In the words of Winfield, from a
narrow and practical point of view, the second theory
will suffice, but from a broader outlook, the first is valid
[Ref.- Winfield and Jolowicz, Tort, 10th Edition, p. 19].
It is thus a question of approach and looking at the things
from a certain angle. each theory is correct from its own
point of view.

Is it Law of tort or Law of Torts?

• Winfield theory of tort: According to the law of “tort”
theory, all the unjustifiable harm for which there is no
excuse will be treated as a tort. The Chief supporter of
this theory in Winfield, according to him if any injury
is done to the neighbor he can sue the other person no
matter if the wrong happened has a particular name or
not. The person held liable should prove lawful
justification. Indian judiciary supported Winfield’s
theory in the case of M.C Mehta v. Union of India.
•Salmond theory of torts: Salmond was the supporter of
the law of “torts”, according to him the liability under
this law arises only when the wrong is covered under
one or other nominate torts. This theory is also known
as Pigeon hole theory. In order to succeed under this
theory, the plaintiff should place the wrong under the
already present torts.
Each theory is correct from its point of view it depends on the
question of approach or looking at things from a certain angle.
Essential Elements of a tort
Three essential elements which constitute a tort are,

1. A Wrongful act or omission, and

2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
It should be of such a nature that it should give rise to a legal
remedy in the form of an action for damages.

What is a Wrongful Act?

A wrongful act can be either morally wrong or legally wrong
and can also be both at the same time.

A legal wrongful act is one which affects one’s legal right, the
wrongful act must be one recognized by law, the act must be
in violation of the law to be a legal wrongful act. An act
which seems Prima facie (based on the first impression)
innocent may also end up infringing somebody else’s legal
right, innuendo (Where a statement is said by an individual
which may be Prima facie innocent but may also have a
secondary meaning which can harm the reputation of another
in the eyes of the public or the person who comes to know of
such information) is an example of this. Liability for a tort
arises when the wrongful act being complained of amounts to
an infringement of a legal private right or a breach or
violation of a legal duty. i.e. If a person is prevented from
voting by another, even if the candidate he was going to vote
for, wins, his legal right to vote has been violated.

For example, if someone whose religion does not allow

him/her to eat non-vegetarian food, still eats it then he/she
will be morally wrong but not legally wrong. And if a person
whose religion doesn’t allow him or her to eat non-vegetarian
and he or she strictly follows that religion is forcefully fed by
someone then it is a legal wrong on the part of the person
forcing the other one to eat that food which he or she does not
want to eat.

What is a duty imposed by law?

A duty of care is one which is imposed on every individual

and requires a standard of reasonable care that he could see as
being harmful towards others. Hence, a duty imposed by law
is a duty which is legally enforceable in the Indian courts.

What is a Legal damage?

Literal meaning of damage- to affect injuriously.

The term “damages” is often confused with the term

“damage”, while they may look similar, they have different
meanings and are significantly distinct from each other,
“damages” refers to the compensation sought for, while
“damage” refers to actual loss or injury.

Within the scope of the subject matter

The second important ingredient in constituting a tort is legal

damage. In order to prove an action for tort in the court, the
plaintiff has to prove that there was a wrongful act or an act or
omission which resulted in the breach of a legal duty or the
violation of a legal right. So, there must be a violation of a
legal right of a person and if there is no violation of a legal
right then there can be no action under the law of torts. If
there has been a violation of a legal right, the same is
actionable whether the plaintiff has suffered any loss or not.
This is expressed by the maxim, “Injuria sine damno” where
‘Injuria’ refers to “infringement of the legal right of a
person” and the term ‘damnum’ means “substantial harm,
loss or damage to that individual”. The term ‘sine’ means
“without”. However, if there is no violation of a legal right, no
action can lie in a court despite of the loss, harm or damage
to the plaintiff caused by the defendant.

Illustration :- A runs a successful school, after 5 months

another school opens up nearby due to which he suffered
heavy losses in the business, here he has suffered no legal
damage but has only suffered damage in terms of business
value so he cannot sue the competitor school for any kind of
damages (similar to the case of Gloucester Grammar School
Case(1410) Y B 11 Hen IV 27).

The factual significance of legal damage is illustrated by two

maxims namely:

• Injuria sine damno, and

• Damnum sine injuria.

Injuria sine damno means injury without damage. Such

damage is actionable under the law of torts. It occurs when a
person suffers a legal damage instead of actual loss, i.e. his
legal right is infringed by some other individual. In other
words, this is an infringement of an absolute private right of a
person without having suffered any actual loss.

An example of this can be the landmark case of, Ashby v.

White(1703) 92 ER 126, where Mr. Ashby, the plaintiff, was
prevented from voting by the constable Mr. White. This rule is
basically based on the old maxim “Ubi jus ibi remedium”
which translates to “where there is a right, there will be a
remedy.”

Another example in the Indian context would be the case of,

Bhim Singh v. State of J and K, where the plaintiff was a

Member of the parliament and was not allowed to enter into
the premises of the Assembly election by a police constable,
hence his legal right was infringed.

Damnum sine injuria whereas translates to damage without

injury, here the party affected suffers damage which may also
be physical but suffers no infringement of their legal rights. In
other words, it means the occurrence of an actual and
substantial loss to a party without any infringement of a legal
right. Here no action lies in the hands of the plaintiff as there
is no violation of a legal right.

Gloucester grammar school case

In this case, there was a school named Gloucester Grammar

school where the defendant used to teach. The defendant then
resigned and quit his job at the school due to some internal
dispute between the management and him. The defendant then
set up his own school. This new school that the defendant set
up was right in front of Gloucester Grammar School. The
defendant, now the rival school teacher was well-known for
his teaching skills which were easy and explicit to understand.
The defendant was therefore well known and liked by the
students of the plaintiff’s school. Thus, this made the boys
from the plaintiff’s school join the defendant’s school. In
order to attract more students, the defendant also reduced the
school fees and kept it nearly two times lesser than the fees
charged by the plaintiff’s school. Apart from the teaching, this
is another factor that drove the students to leave the plaintiff’s
school and join the defendant’s school. This led to a massive
depletion of students as well as pecuniary losses for the
plaintiff school. Following this, the owner of Gloucester
Grammar School i.e., the plaintiff school’s owner filed a
lawsuit against the rival school teacher (the defendant) in
order to recover the damages that were caused by the
establishment of the defendant’s school. The petitioner
claimed that the opening up of the new school near the old
school has caused a lot of financial losses to the school and
thus these losses should be compensated.

Issues Raised In Gloucester Grammar School Case

The two main issues raised in the Gloucester Grammar School
Case. These are

1. Can the pecuniary and monetary losses suffered by the

plaintiff be compensated due to the establishment of the
new school in close vicinity?
2. Does the Gloucester Grammar School case come under
the concept of the legal maxim Damnum Sine Injuria?
And if yes, then how can the defendant skip liability?
Judgement Of Gloucester Grammar School Case
In Gloucester Grammar School Case, Hon’ble Judge Justice
Y.B. Hillary said that the defendant was not liable and the suit
was dismissed. Compensation is not the ground of action
despite the fact that the monetary loss is caused but if no legal
right is infringed or violated. The defendant had lawfully
established his school and did not go against any laws and did
not violate any legal rights of the plaintiff’s school during the
process. The damages that the plaintiff had to suffer that were
caused by the defendant did not infringe any legal rights of
the plaintiff.
This was a mere case of business competition between
Gloucester grammar school and the defendant’s school.
Establishing and starting a new school and educating students
is the defendant’s professional right and is legitimate in terms
of the law. The decision made by the defendant to charge a
lower fee was completely his call and he did not commit any
legal wrong by doing so. Just setting up a new school and
increasing competition is not a legal wrong. Thus, the court
ruled in the favour of the defendant and did not hold him
liable for this act.

Ushaben v bhagalaxmi chitra mandir

In this case, the plaintiff had sued the defendant for a

permanent injunction to restrain the defendant from showing a
movie named “Jai Santoshi Maa”. It was said by the plaintiff
that the contents of the movie significantly hurt the religious
sentiments of the people belonging to the Hindu community
as well as the religious sentiments of the plaintiff as the movie
showed Hindu Goddess’ Laxmi, Parvati, and Saraswati, to be
jealous of one another and were ridiculed in the film. It was
held that hurt to religious sentiments was not an actionable
wrong.

Distinction between Injuria sine damno and Damnum sine

injuria

(1) On one hand, i.e. in the case of Injuria sine damno there is
no physical damage or an actual loss on the part of the
plaintiff while on the other hand in case of damnum sine
injuria there is actual damage and loss on the part of the
plaintiff.

(2) Secondly, in the case of Injuria sine damno, the party

suffers with the infringement of their legal rights, while in the
case of Damnum sine injuria, there is no legal right
infringement.

(3) Thirdly, Injuria sine damno is actionable in the court while

Damnum sine injuria is not actionable in court.
(4) Fourthly, the Injuria sine damno deal with the legal
wrongs while Damnum sine injuria deal with the moral
wrongs.

Tort and other wrongs

Tort and Crime – Distinguished

(1) A tort is basically a private wrong, i.e. it is the

infringement of a person’s right in rem, in other words, it is an
infringement of a personal right. While a crime is a public
wrong, i.e. is against the whole world and the state, it is an
infringement of rights in personam, in other words, it is an
infringement of the public right.

(2) The remedy in the case of law of torts is in the form of

damages, while in the case of a crime, it is in terms of
punishment.

(3) In the case of a tort, a suit is filed. Whereas, in the case of

a crime, a complaint is filed.

(4) Law of torts is an uncodified law whereas law of crimes is

a codified law.

(5) In tort, intention is important but not in all cases, whereas

in the case of criminal law intention is the crux of the offence
itself.

Example: A good example of this can be Assault, where the

party who has been assaulted can bring charges against the
person who has assaulted him or her. Also he or she can claim
for damage in the civil courts under Tort law.

Torts and Breach of Contract – Distinguished

(1) In the case of a tort the duty is fixed by the law, whereas in
the case of contract the duty is fixed by the parties involved.

(2) In case of a tort, the duty is towards everyone in the

society, whereas in the case of a contract, the duty is towards
specific individuals only.

(3) Motive is often taken into account in the case of a tort,

while, in the case of a contract, motive is irrelevant.
(4) Damages in the case of a tort are different under different
circumstances, whereas, in the case of a contract, the damages
are in the form of compensation for the loss suffered in
peculiar form.

(5) In the case of a tort, intention is taken into consideration in

some cases, whereas, in the case of a breach of contract,
intention is irrelevant.

Example : A father who employs a surgeon for the treatment

of his minor son, and if his son is injured by the surgeon’s
carelessness. Here the father can sue the surgeon for the
breach of contract also, as there is no contract between the
minor son and the surgeon, the minor son can sue the
surgeon(for the careless act which amounts to negligence) in
tort and can also put charges on the surgeon but he cannot sue
for the breach of contract.

Torts and Breach of trust – Distinguished

(1) In the case of a tort, the compensation is in the form of

unliquidated damages, whereas, in the case of breach of trust,
the compensation is in the form of liquidated damages.

(2) Law of torts has originated as a part of common law

whereas, breach of trust could be redressed in the Court of
Chancery.

(3) Law of trust is regarded as a division of the law of

property, whereas, law of tort is not regarded as a division of
the law of property.

Liquidated damages vs Unliquidated damages

Both of these damages solidifies the plaintiffs right to be
compensated. Liquidated damages, on one hand, have their
amount of compensation fixed while on the other hand,
unliquidated damages have no prior fixed amount, they
change with the intensity of the offence committed by the
defendant.

The extent of the amount to be compensated in the case of

liquidated damages is predetermined whereas in the case of
unliquidated damages in order to get the maximum
compensation the plaintiff has to prove the extent of the
damage he has suffered from.
Tort and Quasi-Contract
Quasi contract cover those situations where a person is held
liable to another without any agreement, for money or benefit
received by him to which the other person is better entitled.
According to the Orthodox view the judicial basis for the
obligation under a quasi contract is the existence of a
hypothetical contract which is implied by law. But the Radical
view is that the obligation in a quasi contract is sui generis
and its basis is prevention of unjust enrichment.

Quasi contract differs from tort in that:

→ There is no duty owed to persons for the duty to repay
money or benefit received unlike tort, where there is a
duty imposed.
→ In quasi contract the damages recoverable are liquidated
damages, and not unliquidated damages as in tort.
Quasi contracts resembles tort and differs from contracts in
one aspect. The obligation in quasi contract and in tort is
imposed by law and not under any agreement. In yet another
dimension quasi contract differs from both tort and contract.
If, for example, A pays a sum of money by mistake to B. in
Quasi contract, B is under no duty not to accept the money
and there is only a secondary duty to return it. While in both
tort and contract, there is a primary duty the breach of which
gives rise to remedial duty to pay compensation.

Tortious liability and mental element

A tortious liability arises when an individual or a person
causes any injury to another person’s property, reputation, his
life, etc. It is civil in nature and the intention due to which
such an injury was caused may or may not be necessary, i.e., it
doesn’t matter if it was caused intentionally or by accident in
most of the cases in the law of torts. The important thing is to
figure out the mental element in order to determine the
tortious liability of an individual, and on the basis of intention,
tort can be either Intentional tort or unintentional tort.

• Intentional Tort

Intentional tort is one in which the tort is committed with full

knowledge of the outcome of the act along with the mental
intention to cause such a tort. Having mala fide intention is
necessary to commit an Intentional Tort.

Intentional torts are –

• Battery.
• Assault.
• False imprisonment.
• Trespass to land, etc.

• Unintentional Tort
Unintentional torts are caused usually by accident or by
mistake by the defendant to the plaintiff without any mala fide
(Evil or Wrongful) intention towards doing such an act. These
are usually committed on the breach of duty of care which a
reasonable human being would’ve considered under normal
circumstances. Negligence (failure to take proper care over
something) is a great example of this kind of tort.

The most common example of Negligence as a civil wrong

can be the negligence tort cases of slip and fall which can
occur when the owner of a premises fails to take reasonable
care to the floor of his property thus leaving water on the floor
carelessly which in turn results in harming the individuals
whoever enters his premises. Here, the owner of the premises
did not intent to harm the visitors at all but due to his
carelessness, such an outcome came to be.

Relevance of Intention and Motive

Generally, the motive is the state of mind with intent or a
purpose in the mind of an individual while being in the
commission of an act. While on one hand, the motive is the
ultimate object for which an act is done, the intention refers to
the immediate purpose of the act. Now the question arises
whether these mental elements play a significant role in the
determination of tortious liability or not? In criminal law the
concept of mental element plays a significant role in
determining the role of a person’s liability but in case of law
of tort, mental element does not usually play a significant role,
as there are some torts that can be committed without having
the intention to do them and the person who still ends up
committing these offences still end up being responsible for
them, such as in the case of negligence, while on the other
hand mental element is necessary in order to prove a person’s
liability in the case of Battery, Assault, etc.

Situation of law of Torts in India

• In India, the concept of law of Torts has been there since
even before it gained its independence from the
Britishers. The Sanskrit word “Jimha” was used in Hindu
law in the sense of “tortuous of fraudulent conduct”, the
word literally meant “crooked”. Hindu and Muslim laws
had compensation assured for certain tortious acts. But
even today, in the Modern India, the law of torts is mainly
the English law which owes its origin to the principles of
the common law of England.
• Although in the Indian courts, before any English law is

applied, it is first overlooked whether if it will be

applicable in Indian society’s point of view or not. Hence
the law of torts is still uncodified( those that originated
from sources such as court decisions or customs) in India
and is still based on the common law of England.
• The law of torts is underdeveloped in India as most of the
people are not at all aware of these due to high amount of
unawareness about its existence in our nation, another
thing is the fact that not everyone can afford a lawyer and
the process of court-work which takes a lot of time as
well as a lot of money.
• Still the law of torts play a significant role in the Indian
courts as there are many frequent cases of Defamation,
Negligence, etc.
Conclusion
It can very well be established from above that, a tort is a civil
wrong which is caused when one individual infringes
another’s legal rights. And the concept of mental element may
or may not be relevant in certain tort as in order to determine
it, we would first have to know the nature of the tort
committed by the individual. It can be done intentionally like
in the case of Battery, as well as accidentally without the
intention of committing such an act by performing certain acts
carelessly or by accident like in the case of negligence. The
situation of Law of tort is not so well as many people are still
not aware of the rights that they possess which is due to the
fact that there is a lack of awareness among the people, the
fact that the law of torts is still uncodified and is a direct
derivative of the common law of England makes it less likely
to be adaptable in certain cases to the Indian context, although
now it has been adapted into the Indian context.