Origin of Law of Torts
Earlier the French William the Conqueror’s 1066 Norman conquest of England, the
legal system was somewhat different, decided on a more-or-less case-by-case
degree. After 1066, eminent judges were ordered to travel different allotted
region in order to absorb those village laws which had developed over centuries.
Using this information, these judges noted and implemented precepts they deemed
fit into their own court findings. Further, when referred to often enough, these
cases became and are now called legal precedents. Sessions during which these
judges conducted trials were termed as assizes, or in modern terms,
. Even now, the designation from which a judge announce verdicts
and sentences is called the bench
Once established, these precedents were meant to be allotted equally to each
member of society, from a lord to a serf, concluding the term common law. After
the Norman Conquest, fines to be paid only to courts or to the king, and quickly
converted into a revenue source. A wrong which is known as a tort or trespass,
and there arose a difference between civil pleas and pleas of the crown.
The law of Torts introduced in India through England. After the Norman Conquest,
French was the spoken language in England’s judiciary hence many of the English
law’s technical terms have their origin to French and tort is among one of them.
The expression ‘tort’ is based on the concept that there are certain rights for
every individual in the society. The reasoning behind this tort law was to
enforce rights and duties.
Law of Torts in India
Under the Hindu law and the Muslim law tort owed a much narrower conception than
the tort under the English law. The punishment of crimes under these systems
occupied a more prominent place than compensation for wrong doings. The law of
torts in India is basically the English law of torts which is based on the
principles of the common law of England. It was made suitable to the Indian
conditions appeasing to the principles of justice, equity and good conscience
and as is amended in the Acts of the legislature. Its origin is directly linked
with the establishment of British courts in India.
In M.C. Mehta v. Union of India,
Justice Bhagwati held:
we must evolve new principles and lay down new norms which will exclusively deal
with the new problems which arose in a highly industrialized economy. We cannot
allow our judicial thinking to be decided by reference to the law as it prevails
in England or for the matter of that in any of the foreign nations. We should be
certainly prepared to receive light from whatever source it comes but and we
have to build our own jurisprudence.
It was also held that section 9 of CPC, which enables the civil court to
adjudicate all suits of a civil nature, impliedly confers jurisdiction to apply
the Law of Torts as principles of justice, equity and good conscience.
Therefore, the court can construe upon its inherent powers under section 9 for
developing such a field of liability.
Essentials of Law of Torts
Act/Omission and a Breach of Duty
To constitute a law of tort there should be a demonstration that can either be
negative or positive. There must be some kinds of obligation to constitute such
kinds of wrongful act or omission. It further implies that there was an
obligation to do or not to complete a specific act, or to carry on in a defined
way in which a sound and sensible man is relied upon to act in particular
The final part in constituting a tort is the moulding of lawful obligation. The
legitimate rights vested with the offended party ought to have been infringed
i.e. certain acts or oversight have brought about the obstruct of lawful duty.
When there is violation of legal duty by an act, then the party who has incurred
the damages is legally eligible to seek relief from that court and owe a duty to
claim damages for their loss.
Legitimate damage could be understood clearly with the help of following
Injuria sine damnum
Injuria means unapproved obstruction with the duties of the offended
party. Damnum implies damage or misfortune ensured as far as
solace, monetary terms, and wellbeing etc as are considered.
At a point when there is an infringement of legal appropriate with no damage
to the offended party, the offended party can easily approach the court. In
the landmark judgement of Ashby v White, the offended party has been
kept away by the respondent, a returning officer. The offended party was an
eligible voter at the parliamentary election but due to detainment, his
voting right were abused. The offended party sued the respondent for
infringement of his lawful right. Since there is an injury, likewise the
cure must exist for it.
Damnum sine injuria:
Accordingly, if there is some damage caused to the affected party with no
breach of duty towards offended party's legal right. A man cannot seek
relief in court regardless of whether the damage is caused because of the
ponder act of the respondent, as long as the other party is practicing their
legal right. In the landmark judgement of the Gloucester Grammar School, the
respondent party set up their school precisely next to the school of the
The offended party ensured misfortune in view of the adversary school as he
needed to reduce the expenses as numerous understudies took confirmation in
respondent's school. Then in such case there is no cure acceptable for the
misfortune endured by him. The respondent hasn’t done anything in abundance
of his legitimate right.