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 Law of Tort Chapter I

1. Nature & Scope

Q. What is ‘tort’? Explain the nature and scope of the law of tort.
Or,
Define tort. What are its essential ingredients?
Ans:- The French word ‘tort’ has been derived from the Latin term ‘tortum’, which
means to twist. Therefore, it includes that conduct which is not straight or lawful, but on
the other hand twisted, crocked or unlawful. It is equivalent to the English term
‘wrong’.
In fact, ‘tort’ is a civil wrong, which is redressible by an action for unliquidated
damages and which is other than mere breach of contract or breach of trust. Thus, it
may be observed that -
i) Tort is civil wrong;
ii) This civil wrong is other than a mere breach of contract or breach of trust; and
iii) This wrong is redressible by an action for unliquidated damages.
i) Tort is a civil wrong:- Tort belongs to the category of civil wrongs. In the case of
civil wrong, the injured party, i.e., the plaintiff institutes civil proceedings against the
wrongdoer, i.e., defendant. In such case the remedy is damages. The plaintiff is
compensated by the defendant for the injury caused to him. However, at the same time,
some act (e.g. defamation) done by a person may result in two wrongs, a crime as well
as a tort. In such a case, both civil and criminal remedies would be concurrently
available.
ii) Tort is other than a mere breach of contract or breach of trust:- Tort is that civil
wrong which is not exclusively any other kind of civil wrong. If we find that the only
wrong is a mere breach of contract or breach of trust, then it would not be considered to
be a tort. However, the same act may amount to two or more civil wrongs, one of which
may be a tort. For example, if A delivers his horse to B for safe custody for a week and
B allows the horse to die of starvation. Thus, B’s act amounts to two wrongs - 1) breach
of contract of bailment, and 2) the commission of tort of negligence. Here A can claim
damages either under the law of tort for negligence or for breach of contract of bailment.
But he cannot claim damages twice.
iii) Tort is redressible by an action for unliquidated damages:- Damages is the only
and most important remedy for a tort. It indicates that the wrong is a civil wrong rather

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than a criminal wrong.
Damages in the case of tort are unliquidated. It is this fact which enables us to
distinguish tort from other civil wrongs, like breach of contract or breach of trust, where
the damages may be liquidated. Generally, in case of tort, the parties are not known to
each other until the tort is committed. Moreover, it is difficult to foresee or visualize the
quantum of loss in case of tort. Therefore, the damages / compensation to be paid are
left to be determined at the discretion of the court. Hence, such damages are called
unliquidated. Generally, it is the monetary compensation, which may satisfy the injured
party. There are other remedies, which could be available when the tort is committed,
e.g., injunction etc.

Q. “A tort is an infringement of a right in rem and not a right in personam” -

Comment.
Ans:- A tort is an infringement of a right in rem and not a right in personam. A right in
rem is a right vested in some determinate person either personally or a member of the
community and available against the whole world at large, i.e., against everybody. Thus,
one’s right not to be defamed or assaulted are rights available against the whole world.
Such rights are rights in rem and are, naturally, too numerous to be enumerated.
The opposite of a right in rem is a right in personam. A right in personam is a right
available against some determinate person or body. Thus, X agrees to sell his house to
Y for a certain sum of money, but does not honour his obligations. In these
circumstances, Y will have a right to sue X, and only X and not the whole world at large
for a breach of contract. Here, the mutual rights against one another are created by their
private agreement. The rights are personal to both of them. Outsiders are not concerned
with them. Such rights are, therefore, called right in personam.

Q. “Tort is the breach of duty primarily fixed by law” - Do you agree with this
view?
Ans:- Law imposes duty on every person in the society. The also expects that all
persons will observe these duties and will not make a breach of them. If a person makes
a breach of such duty or if he makes a non-observance of such duty, he incurs liability
in the law of tort. In other words, tort is the breach of duty primarily fixed by law. There
are two special features of the duty contemplated in this definition. They are -
i) Duty primarily fixed by law:- Duty should be fixed - a) primarily, and b) by law. It
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means that duty should exist already. It must be antecedent in time. Antecedent is to be
decided with reference to the date of occurrence. Secondly, this duty should be fixed by
law and not by the parties. This part of definition goes to distinguish a tort from contract,
because in contract the obligation of the parties is decided by consent of the parties
thereto.
ii) Duty towards persons generally:- Another feature of the duty is generality. Duty is
general on every person and liability may attach to any person who makes a breach of
such duty. This also goes to distinguish a tort from contract.
Again, the concept of duty implies, on the one hand, the relationship of the plaintiff
and the defendant, and on the other hand, standard of behaviour which the defendant is
required to fulfill. If the defendant does not satisfy the standard of behaviour, measured
by the circumstances of each case, he will be held liable in tort. Thus, this definition
calls up a picture of reasonable foresight and standard of reasonable conduct.

Q. “The aims of law of tort have changed through out its history” - State and
explain the various aims of the law of tort. Has any one of the aims mentioned
above offered a complete justification of the law?
Ans:- The various aims of law of tort are the following:-
1. To give the plaintiff what the defendant has promised him or at least to give
him damages for not getting what the defendant has promised:- This is usually
done in action in contracts but is also applicable in an action of tort.
2. To restore a person what another unjustly obtained at his expense:- This is
commonly known as restoration. Thus, a person who has taken away the chattel of
other person without title shall be liable to restore the chattel at the suit of the plaintiff.
3. To decide the rights of the parties:- This is commonly called as declaratory
remedy. When right of the plaintiff is disputed by the defendant, in an action for
damages the court may decide the plaintiff’s right. Thus, where the plaintiff’s chattel is
unjustly detained by the defendant, in an action for damages, the court may, in
awarding the damages, declare the plaintiff’s title.
4. To punish for wrongs and to deter from wrong doing:- This is the historic
function of criminal law. But in tort it also has importance. The punitive element is
obvious, when exemplary damages are awarded for tort. In case of defamation courts
may award heavy damages to deter the defendant from doing.
5. To prevent unjustifiable injury and to compensate for such injury:- Apart from
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the above mentioned aims, the main purpose or aim of the law of tort is to prevent
unjustifiable injury to a person. It has been expressed in the maxim ‘alterum non
laedere’ which means to hurt nobody by words or deed. An action of tort, therefore, is
usually a claim for pecuniary compensation in respect of damages suffered as a result of
invasion of a legally protected interest. Indian Supreme Court, in the case of Jai Laxmi
Salt works Pvt. Ltd. vs. State of Gujrat (1994) SCC 1, has also confirmed that the entire
law of tort is founded and structured on morality that no one has a right to injure or
harm another intentionally or even innocently. Thus, if A does an act whereby he
adversely affects the legally protected interest (right) of B and thereby causes some
legal damages to B, then B is entitled to bring an action against A for compensation.

Q. In India is there any statute codifying the law of tort as a whole?

Ans:- There is no Act of the legislature in India dealing with the law of torts. The law of
torts applicable in India is the English law of tort which, in its turn, is based on the
common law prevailing in England. The rules of English law are to be applied so far as
they are applicable in Indian society and circumstances. When in a given case, statutory
and customary law does not exist, court in India will be guided by the principles of
justice, equity and good conscience.
Jurists in England and in India have often demanded the law of torts be reduced to a
statutory form. The advantage of such a step would be that the law would become
definite and compartmentalized. However, one must not forget that this branch of law
has evolved out of judicial decisions, that its very basis is leading cases of English
courts, and perhaps more harm than good may be done to the development of this
branch of law reducing it to a statutory code.
In recent times, some parts of the law of torts have been codified, as for example, the
Fatal Accidents Act, 1976; the Workmen’s Compensation Act, 1987; the Motor
Vehicles Act, 1988; and the Public Liability Insurance Act, 1991 etc.

Q. “The law of tort is consisting only a number of specific wrongs beyond which
the liability under this branch of law cannot arise” - Do you agree with this view?
Explain.
Or,
“To say that the law 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
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being added to” - What is pigeon-hole theory? Examine the above principle in the
light of the general principles of tortuous liability.
Or,
Is it law of tort or law of torts? Explain with reasons.
Ans:- There was a dictum that the law of torts consisting only of a number of specific
wrongs beyond which the liability under this branch of law cannot arise. In this
connection, Salmond had posed the question:
(i) Is it the Law of Tort, i.e., Is every wrongful act, for which there is no
justification or excuse to be treated as a tort; Or,
(ii) Is it a Law of Torts, consisting only of a number of specific wrongs beyond
which the liability under this branch of law cannot arise.
Winfield preferred the first of those alternatives and according to him, it is the Law
of Tort. According to this theory, if I injure my neighbour, he can sue me in tort whether
the wrong happens to have particular name like assault, battery, deceit, slander or
whether it has no special title at all; and I shall be liable if I cannot prove lawful
justification.
Salmond, on the other hand, preferred the second alternative and for him, there is
no Law of Tort, but there is Law of Torts. The liability under this branch of law arises
only when the wrong is covered by anyone or the other nominate torts. There is no
general principle of liability and if the plaintiff can place his wrong in anyone 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 offence, so the law of torts consists
of a body of rules establishing specific injuries. Neither in the one case nor in the other,
there is any general principle of liability. Whether I am prosecuted for an alleged
offence or sued for an alleged tort, it is for my adversary to prove that the case falls
within some specific and established rule of liability, and not for me to defence myself
by proving that it is within some specific and established rule of justification or excuse.
Each theory seems to have received some support. In 1702, Ashby vs. White clearly
established in favour of the first theory, recognizing the principle ubi jus ibi remedium.
Holt, C.J. said that “if man will multiply injuries, action must be multiplied too : for
every man who is injured ought to have recompense”. Similarly, in 1762, Pratt, C.J.
said : “Torts are infinitely various not limited or confined”. Pollock also supported this
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view.
Dr. Jenks favoured Salmond’s theory. He was, however, of the view that Salmond’s
theory does not imply that the courts are incapable of creating new tort. According to
him, the court can create new tort but such torts cannot be created unless they are
substantially similar to those which are already in existence.
In India, Winfield’s theory has been received more support because of the decision
of the Supreme Court in M.C.Mehta vs. Union of India, AIR 1987 SC 1086. The
decision indicates that the court will not hesitate to evolve a new principle of tortuous
liability, if the occasion so demands. That’s why Sahai J., in Laxmi Salt Works (1994)
SCC 324, rightly remarked that it would be primitive to class strictly, or close finally,
the ever expanding growing horizon of tortuous liability.
Whatever may be the argument and counter-argument; in recent times neither theory
has been accepted in its totality, to the entire exclusion of the other. In conclusion it
may be said that from the narrow point of view, Salmon’s theory would be accepted.
But if one takes a broader out-look, Windfield’s theory appears to be more-sound.

Q. “There are four classes of wrongs which stand outside the sphere of tort”
(Salmond) - What are those wrongs? Discuss.
Or,
What are the wrongs, which are not torts?
Ans:- According to Salmond, tort is a civil wrong for which the remedy is a common
law action for unliquidated damages. And this civil wrong is not exclusively the breach
of contract or breach of trust or other merely equitable obligation. This definition
emphasizes the negative aspect. In fact, the negative definition given by Salmond has
been arrived at by excluding four classes of wrongs from the definition of torts. These
four classes of wrongs are:-
1. Wrongs which are exclusively criminal:- The important word to be noted here is
‘exclusively’. Ordinarily, wrongs are either civil or criminal. The remedy in case of
purely civil wrongs, e.g., conversion, wrongful dismissal etc., is a suit in a civil court
for damages and compensation. But in case of purely criminal wrongs / crimes, e.g.,
dacoity, murder etc., the remedy is a criminal prosecution in a criminal court with the
primary object of punishing the offender.
However, there are certain wrongs which are both torts as well as crimes, e.g.,
assault, defamation etc. A civil suit and / or criminal prosecution will lie in such cases.
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2. Civil wrongs which are exclusively breach of contract:- Several other civil
wrongs fall outside the sphere of law of torts, as they exclusively involve a breach of
contract. Thus, if X buys a car from Y, and after receiving the purchase money, Y fails
to deliver the car to X; Y has done wrong to X. But as this wrong arising out of a breach
of contract, is not a tort.
3. Breach of trust or other equitable obligation:- A breach of trust is neither a breach
of contract nor a tort. Trust is a matter of confidence and not a matter of contract or tort.
It is merely an equitable wrong and not a tort.
4. Wrongs which are quasi-contractual:- Civil wrongs which create no right of
action for unliquidated damages, but give rise to some other form of civil remedy
exclusively, are not torts. In order to to be tort, a wrong must have, as its remedy, a suit
for quasi-contractual, but in truth they belong neither to the category of contracts not
torts, but a distinct category called restitution.

Q. Distinguish between tort and crime.

Ans:- The following are the points of distinction between tort and crime -
1) The wrongs, which are comparatively less serious, are considered to be private
wrongs and have been labeled as tort; whereas more serious wrongs have been
considered to be public wrongs and are known as crimes.
2) A tort is a species of civil wrong, which give rise to civil liability. But crimes are
those, which give rise to criminal proceedings.
3) A tort is a violation of the civil right of an individual. But a crime is a breach of
public rights and duties which affects the whole community.
4) Since tort is considered to be private wrong, the injured party himself has to file a
suit as plaintiff. On the other hand, in crime, the proceedings are taken and conducted
by the state either suo-moto or on a compliant of a private party.
5) At any stage of the action of tort, if the injured party likes, he may compromise with
the tortfeasor and withdraw the suit. While the law does not permit a settlement in
criminal cases except in certain circumstances as provided by section 320 of the Cr.P.C.,
1973.
6) In the case of tort, the ends of justice are met by awarding compensation to the
injured party. On the contrary in case of crime the wrongdoer is punished.
7) The idea of awarding compensation to the injured party under tort is to make good
the loss suffered by him. Whereas the punishment under criminal law protects the
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society by preventing the offender from committing further offence and deterring him
and other potential offenders from committing wrongs.
8) In tort, intention is usually of subordinate importance and in some cases of no
importance at all. But in crime, means rea of the accused is the main factor on which the
guilt of the accused depends. Generally, an act shall not be punished as a crime unless
there is means rea actually present in the wrongdoer.

Q. Distinguish between tort and breach of contract.

Ans:- A tort differs from a breach of contract in the following ways:-
1) A breach of contract is the violation of a duty fixed by an agreement or mutual
understanding between the parties; while a tort is a violation of a duty fixed by law.
2) A breach of contract is an infringement of a right in personam; whereas a tort is a
violation of a right in rem.
3) In an action for breach of contract, privity between the parties must be proved. But in
tort, the right of action has nothing to do with privity between the parties - it exists
simply because a right has been withheld or violated.
4) Generally speaking, no action for breach of contract can lie when a person
gratuitously undertakes any service for another, but an action may lie in tort for
negligence in the performance.
5) In action for breach of contract, the damages are always liquidated. But in action for
tort, the damages are always unliquidated.
6) In case of breach of contract, the wrongdoer’s motive is not necessary and as such
immaterial. Whereas in case of tort, motive is sometimes essential to the determination
of liability.
7) In a breach of contract, for the purpose of considering whether a suit is time barred,
time runs from the date of breach. On the other hand in tort, it usually runs from the date
when damages is suffered.

Q. Write a short note on felonious tort.

Or,
What do you understand by the expression “Merger of tort in felony”?
Ans:- Where an act is both a tort and a felony (crime), it is called felonious tort.
Sometimes the same act may constitute both a tort and a crime, e.g., assault, defamation
etc. Assault is a civil wrong, i.e., a tort when looked at from the point of view of an
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individual, it being a violation of the right if every person being preserved unmolested.
But at the same time, such an act of violence is looked upon as a menace to the safety of
the society in general. Therefore, it will be punished by the state as a crime. In all such
cases, there are two different kinds of remedies - civil and criminal. The wrongdoer
may be punished criminally, and he may also be compelled in a civil action to pay
damages to the aggrieved party.
In India, this artificial rule of merger of tort in felony has not been accepted. In many
cases, it has been held that an injured person can maintain an action for damages for a
wrongful act, even though it amounts to a crime, without first instituting criminal
proceedings against the offender [ Abdul vs. Mera (1881) Mad 410].

Q. When does the same wrong constitute both a tort and a breach of contract?
Or,
Can there be any concurrence of tort and breach of contract?
Ans:- Sometimes the same wrong may constitute both a tort and a breach of contract.
This happens when a person has undertaken by a contract to perform a duty, which
already lies upon him independently of any contract. The violation of such a duty gives
rise to two causes of action - 1) ex contractu or arising out of contract, and 2) ex delictu
or independent of the contract.
For example, where a physician undertakes to operate a patient and injures the
patient through negligence, he is no doubt liable for breach of contract. At the same
time he is liable in tort. Because no one has a right to do another’s physical harm
without lawful justification. The physician is under a duty to take care and have skill in
the operation both under the contract, as well as under the general law. In this case, if
the physician had already no skill to perform the operation but professed to have it, the
wrong would also amount to a crime as such act is danger to the society as a whole.
Therefore, the concurrence of tort and breach of contract may happen in two ways:
(i) When a person voluntarily binds himself by a contract to perform some duty, which
already lies upon him independent of any contract, the breach of such contract is a tort.
The case of the negligent physician falls within this class; and
(ii) Where the defendant has taken upon himself by a contract a duty which did not
independently exist, and yet the breach of duty is a tort. For example, if A lends his
horse to B who kills it by falling to give it food, B is liable in tort though he has under
no obligation to feed another’s horse except by reason of his contract.
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Q. Distinguish between damage and damages. Briefly discuss the various types of
damages.
Ans:- Damage means the harm or loss suffered or presumed to be suffered by a person
as a result of some wrongful act of another. In other words, damage means the injury or
loss caused to the plaintiff by a wrongful act done by the defendant. Whereas damages
means the remedy by way of compensation which the plaintiff claims to recover in
action for tort on account of damage caused by the act. In short, the sum of money
awarded by the court to compensate damage is called damages.
There are four kinds of damages:-
1. Contemptuous damages:- Contemptuous damages are awarded when it is
considered that an action should never been brought. When the plaintiff has technically
a legal claim but there is no moral justification for it or he morally observed what the
defendant did to him, the court may award a half penny or paise showing its disapproval
of the conduct of the defendant.
2. Ordinary damages:- Ordinary damages are a sum of money awarded as a
compensation for the actual loss suffered by the plaintiff by reason of the injury
complained of. Such amount is not necessarily that which it would cost to restore the
plaintiff for his former condition. Compensation and not restitution is generally the
object of the remedy in tort, and in no case, therefore does the award exceed the amount
claimed by the plaintiff himself.
3. Nominal damages:- Nominal damages are awarded where the purpose of the action
is nearly to establish a right, no substantial loss or harm having been suffered, e.g., in
case of infringement of absolute rights or personal security (assault) and property
(trespass). Nominal damages are so called because they bear no relation even to the cost
and trouble of suing, and the sum awarded is so small that it may be said to have no
existence in point of quantity, e.g., one anna, one shilling, etc.
4. Exemplary damages:- Exemplary damages are awarded not to compensate the
plaintiff but to punish the defendant and to deter him from similar conduct in future.
These are a sum of money awarded in excess of any material loss actually suffered by
the plaintiff. In England, the House of Lords has limited the award of exemplary
damages to three classes of cases only-
i) Oppressive, arbitrary and unconstitutional acts by the govt. servants;
ii) Defendant calculated to make profit for himself by the act complained of,
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 which might exceed the ordinary compensation payable to the plaintiff; and
iii) Statute specially permitting award of exemplary damages.

Q. What is “Remoteness of Damage”? Explain and illustrate the principle with

reference to the decided leading cases.
Or,
Discuss the Doctrine of Natural and Probable consequence with reference to the
leading cases.
Or,
Is a person responsible for all the consequences of his act? Discuss the relating
to the point with suitable illustrations.
Ans:- Damage must be the direct and the natural result of the defendant’s act. A man is
not liable for all the consequences of his wrongful act as a man presumed to intend the
natural but not the remote consequences of his act. Hence, liability must be founded on
act which is the direct and immediate cause of the harm and injury which is complained
of. It is also known as the doctrine of natural and probable consequence. Where the
casual connection between the wrongful act and injury is not sufficiently direct, that is
to say, when the two cannot be connected as cause and effect, there is no liability as the
damage is too remote. This doctrine is also expressed by the maxim, “Injure Non
Remote Causa Sed Proxima Spectatur” (In law, the immediate not the remote cause of
any event is to considered).
There are two competing tests of remoteness of damage:-
1. The test of direct consequences:- According to this test, once a person is liable for a
tort, he is liable for all its direct consequences, whether a reasonable person could have
foreseen them or not, i.e., if they are directly traceable to the act, and not due to the
operation of independent intervening causes.
In Smith vs. London And South Western Railway (1870), grass and hedges
bordering the defendant’s railway line were cut by its servants and negligently left there.
A spark which was emanated from the passing railway engine, ignited the grass left
there. The fire was carried away by wind two hundred yards away to the plaintiff’s
cottage which was as a consequence completely destroyed. The defendant company
was held liable despite the fact that they could not have reasonably foreseen the
consequences.
2. The test of reasonable foreseeability:- According to this test, the essential point in
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determining for the consequences of a tort is whether the act is of such a kind as a
reasonable man would have foreseen. The damages are too remote if a reasonable man
would not have foreseen them.
In Doughty vs. Turner Manufacturing Co, Ltd. (1964), the plaintiff was employed
by the defendant. Some other workmen of the defendants let an asbestos cement cover
to slip into a cauldron of hot molten liquid. It resulted in an explosion and the liquid
thereby erupted, causing injuries to the plaintiff, who was standing nearby. The cover
had been purchased from reputed manufacturer and no body could foresee that any
serious consequences could follow by the falling of cover into cauldron. It was held that
the damage resulting from explosion was not of the kind as could reasonably have been
foreseen, and therefore, the defendants were not liable.

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