The term Tort is the French equivalent of the English word wrong and of the
roman law term delict. It was introduced into English law by Norman jurists. The
word tort is derived from a latin term ‘tortum' which means to twist and implies
conduct which is twisted or tortious. It now means a breach of duty giving rise
to a civil cause of action and for which compensation is recoverable . The basic
principle underlying tort law is that no one should be harmed by the act of
others . There is a duty of care towards everybody , which is impliedly imposed
The term tort is defined by two scholars:
Sir John William Salmond- According to him, "tort is a civil wrong for which the
remedy is a common law action for unliquidated damages, and which is not
exclusively the breach of contract, or the breach of trust, or other merely
Winfield- According to him ," law of tort is general liability which originates
from the violation of duty determined by the law.
Although there is a lot of criticism between both the definitions, Salmond's
definition is considered to be appropriate at this time .
Characteristics Of Tort
There are three characteristics in law of tort:
Tort is a civil wrong in the sense that it is a wrong against the person and not
the society at large. However tort is different from other civil wrongs such as
breach of contract or breach of trust. The act complaint of should, under the
circumstances, be legally wrongful as regards the party complaining; that is, it
must prejudicially affect him in some legal right, merely that it will, however
directly, do him harm in his interests is not enough.
An act which, prima facie, appears to be innocent may become tortious, if it
invades the legal right of another person. A familiar instants is the erection
on no one own land of anything which obstructs to be the light to a neighbours
It is no doubt, lawful to erect what one pleases on ones own land but if by
twenty years enjoyment, the neighbours has acquired the legal right to the
obstructed transmission of the light across the land, the erection of any
building which substantially obstructs it is an invasion of the right and so not
only does damage, but is unlawful and injurious.
The crucial test of legally wrongful act or omission is its prejudicial affect
on the legal right of another. Rights available against the world at large are
very numerous. They are subdivided into private rights i.e. right in personam
and public rights i.e. right in rem.
Right in Personam:
Those rights which are only available to a particular individual but not society
at large. Eg: rights of reputation etc.
Right in Rem:
Those rights which are available against the society at large. Eg: right against
There are two types of damages in general I.e. damages which means compensation
and damage which means injury to a legal right.
Damage means the harm or loss suffered or presumed to be suffered by a person as
a result of some wrongful act or omission.
The real significances of legal damage is explained by two maxims, namely,
Injuria Sine Damnum And Damnum Sine Injuria.
By damnum is meant damage in the substantial sense of money loss of comfort,
service, health, or the like. By injuria is meant a tortious act it need to be
will fuel and malicious for though it be accidental, if it is tortious an action
will lie. Any unauthorised interferences, however trivial, with some absolute
right conferred by law. On a person, is an injury eg- the right of excluding
others from ones house or garden.
In case of Injuria Sine Damnum i.e. the violation of an absolute private right
without any actual loss or damage the person whose right is violated has cause
of action. Every person has an absolute right to his property to the immunity of
his person and to his liberty. There are two kinds of torts which are actionable
per se i.e. one without proof of actual damage and second those which are
actionable only on proof of actual damage resulting from them.
In India the same principles have been followed. The privy council has observed
that their may be , where a right is interfered with, Injuria Sine Damnum,
sufficient to find an action, but no action can be maintained where there is
neither Damnum Sine Injury or Injuria Sine Damnum. Violation of legal right
committed knowingly gives rise to a cause of action e.g. interference with an
exclusive right to weight goods and produce, sold at bazaar.
Case Law Reference:
- Ashby vs White (1703):
It was case refusal to register vote, the defendant an returning officer
wrongfully refuse to register a duly tendered vote of the plaintiff. A
legally qualified voter, at a parliamentary election and the candidate for
whom the vote was tendered was elected, and no loss was suffered, never the
less it was held that an action lay on account of violation of legal right
of the plaintiff.
In this case if the officer started acting maliciously where therefore
without any improper motive in exercising his judgement, honestly refuse to
receive the vote of a person entitled to vote, may be held actionable per
- Gloucester Grammar School Case:
It was a case related to setting a rival school where the defendant a school
master setup a school next door to the plaintiff and students from the
plaintiff's school took admission in defendant's school. It was held that no
action could be maintained as there is no violation of any legal right.
- Mogul Steamship Co. v/s Mcgregor And Co. (1892):
This case was related to driving rival traders out of market - A, B, C, and
D, shipowners, who shipped tea from one port to another, combined together,
to keep the entire trade in their hands and consequently to drive F, a rival
shipowners out of trade by offering special terms to customers who deal with
them to the exclusion of F, F sued A, B, C, and D for the loss caused to him
by their act. It was held that F had no right of action, for no legal right
to F had been infringed. Damage done by competition in trade was not
- Use Of Title By Spouse After Dissolution Of Marriage:
Where the marriage of a commoner with peer had been dissolved by decree at
the instance of the wife, and she afterwards, on marrying a commoner,
continued to use the title she had acquired by her first marriage, it was
held that she did not thereby, though having no legal right to the user,
commit such legal wrong against her former husband, as to entitle him, in
the absence of malice, to an injunction to restrain her the use of the
The result of the two maxims is that there are motel wrongs for which the law
gives no legal remedy though they cause great loss or detriment; and, on the
other hand, there are legal wrongs for which the law does give a legal remedy,
though there be only violation of a private right, without actual loss or
detriment in the particular case. Actual damage is the gist of action in the
- Right to support of land as between adjacent landowners;
- conspiracy or confederation;
- distress damage feasant;
- nuisance consisting of damages to property; and
- actions to procure persons to break their contracts with others.
A tort is a civil injury, but all injuries are not torts. The wrongful act must
come under the category of wrongs for which the remedy is a civil action for
damages. There also exist a large number of unauthorised acts for which only a
criminal prosecution can be instituted. Further, damages claimable in tort
action are unliquidated damages. For example, as earlier seen an action for
money had and received in the context of quasi-contract, where liquidated
damages are claimed is not a tort action.
The law of torts is said to be a development of the maxim ubi jus ibi remedium
(there is no wrong without a remedy). Jus signifies here the ‘legal authority to
do or demand something; and remedium may be defined to be the right of action,
or the means given by law, for the recovery or assertion of a right.
If a man has a right, "he must of necessity have a means to vindicate and
maintain it, and a remedy if he is injured in the exercise or enjoyment of its;
and indeed it is a vain thing to imagine a right without a remedy; want of right
and want of remedy are reciprocal. The maxim does not mean, as it is sometimes
supposed, that there is a legal remedy for every moral or political wrong. If
this were its meaning, it would be manifestly untrue. There is no legal remedy
for the breach of a solemn promise not under seal and made without
Under Indian law there is no legal remedy for the breach of a solemn promise
made without consideration whether under seal or not. There are dicta both
ancient and modern that categories of tort are not closed and that novelty of a
claim is no defence.
Some General Elements In Torts:
Act And Omission It has already been seen that to constitute a tort there must be a wrongful
act. The word "act' in this context is used in a wide sense to include both
positive and negative acts i.e., acts and omissions. There is also a basic
distinction between an act and an omission. Failure to do something in doing
an act is not an omission but a bad way of performing the act. For example,
if a lawyer gives an opinion without taking notice of the change in law
brought about by a reported decision of the Supreme Court, he would not be
guilty of an omission but of performing the act of giving his opinion in a
bad way. "An omission is failure to do an act as a whole."
Generally speaking, the law does not impose liability for mere omissions.
See also, the definition of ‘act' in section 3(2), General Clauses Act,
CLERK & LINDSELL, says that "the purpose of the distinction between an act
done in a bad way and omission is to distinguish between regulating they way
in which an activity may be conducted and imposing a duty to act upon a
person who is not carrying on any relevant activity".
Voluntary And Involuntary Acts According to a theory propounded by BROWN and accepted amongst by others by
AUSTIN, STEPHEN and HOLMES a voluntary act may be distinguished from an
involuntary act by dividing the former into "1) a willed muscular
contraction, 2) its circumstances, and 3) its consequences".
According to a theory propounded by Brown and accepted amongst others by
Austin, Stephen and Holmes a voluntary act may be distinguished from an
involuntary act by dividing the former into:
An act is innocuous or wrongful because of the circumstances in which it
is performed and the consequences which it produces. For instance, "to crook
the forefinger with a certain force is the same act whether the trigger of a
pistol is next to it or not. It is only the surrounding circumstances of a
pistol loaded and cocked, and of a human being in such relation to it, as to
be manifestly likely to be hit that make the act a wrong."
- A willed muscular contraction,
- its circumstances and
- its consequences.
An act is involuntary when the muscular contraction is not willed. This
theory has not been accepted by some others for the reasons that it rests
upon dubious psychology, it is inappropriate for the problem of omissions,
and it imposes upon the meaning of the term "act" a limitation which is
contrary to the common usage of speech. In common speech one includes all
the relevant circumstances and consequences under the name "act".
The act of murdering a person by shooting at him is one act and not merely
the muscular contraction of pressing the trigger. The wrongful act of
trespass on land includes the circumstance that the land belongs to another,
and not merely the bodily movement by which the trespasser makes his entry
According to this view, "an act has no natural boundaries" and "it is for
the law to determine in each particular case what circumstances and what
consequences shall be counted within the compass of the act with which it is
concerned." Omissions like positive acts may also be voluntary or
involuntary. When a parent fails to rescue his child because he has fallen
asleep or because he is suffering from insanity, the omission is
involuntary, though it does not involve any question of muscular
The common feature of involuntary acts and omissions according to this view
is "not in the absence of any actual exercise of will, but in the lack of
ability to control one's behaviour; involuntary acts are those where the act
or lacks the power to control his actions and involuntary omissions are
those where the act or's lack of power to control his actions renders him
unable to do the act required". An involuntary act does not give rise to any
liability. For example, an involuntary act of trespass is not a tort.
In Olga Tellis v. Bombay Municipal Corporation, 16 the Supreme Court
referring to the inordinate helplessness of pavement dwellers of Bombay
observed: "The encroachments committed by those persons are involuntary acts
in the sense that those acts are compelled by inevitable circumstances and
are not guided by choice." These observations cannot be understood to mean
that an act committed out of helplessness arising out of poverty is an
involuntary act under the Law of Torts.
The Supreme Court in the sentence following the above observations said that
trespass is a tort, and pointed out that necessity is a plausible defence.
Had the court intended to lay down that the encroachments were involuntary
in the sense known to the Law of Torts and for that reason not actionable,
there was no question of suggesting necessity as a defence.
3(A) Malice Malice in the popular sense means spite or ill-will. But in law malice has
two distinct meanings:
- Intentional doing of a wrongful act, and
- Improper motive.
In the first sense, malice is synonymous with intention. In the second
sense, malice refers to the motive and in this sense it includes not only
spite or ill-will but any motive which the law disapproves. Malice in the
first sense was described by Bayley J., in the following words: "Malice in
common acceptation means ill-will against a person, but in its legal sense
it means a wrongful act, done intentionally, without just cause or excuse.
If I give a perfect stranger a blow likely to produce death, I do it out of
malice, because I do it intentionally and without just cause or excuse. If I
maim cattle without knowing whose they are, if I poison a fishery, without
knowing the owner, I do it out of malice, because it is a wrongful act, and
done intentionally." The word "wrongful' imports the infringement of some
right, i.e., some interest which the law recognises and protects.
Where a man has a right to do an act, it is not possible to make his
exercise of such right actionable by alleging or proving that his motive in
the exercise was spite or malice in the popular sense.
A wrongful act, done knowingly and with a view to its injurious
consequences, may be called malicious. But such malice derives its essential
character from the circumstances that the act is intentionally done and
constitutes a violation of the law. Here also, the use of the word "malice"
is in the first sense i.e., intentional wrong doing which is also known as
"malice in law".
Thus, "Malice in law" means an act done wrongfully, and without reasonable
and probable cause, and not, as in common parlance, an act dictated by angry
feeling or vindictive motive." Malice in law" is "implied malice" when from
the circumstances of the case, the law will infer malice.
Malice in the second sense, i.e., improper motive, is sometimes known as
"express malice", "actual malice" or "malice in fact" which are synonymous
expressions. Malice in this sense, i.e., improper motive, is for example,
relevant in the tort of malicious prosecution. The topics of "Intention" and
"Motive" are hereinafter discussed separately.
3(B) Intention, Negligence And Recklessness
Intention is an internal fact, something which passes in the mind and direct
evidence of which is not available. "It is common knowledge that the thought
of man shall not be tried, for the devil himself knoweth not the thought of
man." This dictum of Brian C.J., only means that no one can be sure of what
was in another's mind because what a person thinks can be inferred only from
his conduct. An act is intentional as to its consequences if the person
concerned has the knowledge that they would result and also the desire that
they should result.
It is a case of negligence when the consequences are not adverted to though
a reasonable person would have foreseen them. It is "recklessness " when the
consequences are adverted to though not desired and there is indifference
towards them or willingness to run the risk. Recklessness is sometimes
called "Gross negligence" but very often and more properly it is assimilated
It is sometimes said that "a party must be considered in point of law to
intend that which is the necessary or the natural consequence of that which
he does". This is too wide a statement as it fails to distinguish between
intentional and negligent wrong doing.
Motive is the ulterior object or purpose of doing an act. It differs from
intention in two ways. First, intention relates to the immediate objective
of an act, whereas, motive refers to the ulterior objective. Secondly,
motive refers to some personal benefit or satisfaction which the act or
desires whereas intention need not be so related to the actor.
When A poisons B, the immediate objective is to kill B, and so this is A's
intention. The ulterior objective of A may be to secure B's estate by
inheritance or under a will executed by him and this objective will be A's
motive. Motive is generally irrelevant in tort.
In Allen v. Flood; 'Lord Watson said: "Although the rule may be
otherwise with regard to crimes, the law of England does not take into
account motive as constituting an element of civil wrong. Any invasion of
the civil rights of another person is in itself a legal wrong, carrying with
it liability to repair its necessary or natural consequences, in so far as
these are injurious to the person whose right is infringed, whether the
motive which prompted it be good, bad, or indifferent."
An act which does not amount to a legal injury cannot be actionable because
it is done with a bad motive. It is the act, not the motive for the act,
which must be regarded. If the act, apart from motive, gives rise merely to
damage without legal injury, the motive, however reprehensible it may be,
will not supply that element. The exceptional cases where motive is relevant
as an ingredient are torts of malicious prosecution, malicious abuse of
process and malicious falsehood. Motive is also relevant in the torts of
defamation, nuisance and conspiracy.
In some cases there may be a plurality of purposes and it may become
necessary to decide as to what is the predominant purpose. For example, if
persons combine to protect their own interests and to cause damage to
another person, they would be liable for the tort of conspiracy if the
predominant purpose is to cause damage and damage results; but if the
predominant purpose is protection of their legitimate interests, they would
not be liable even if damage is caused to another person. Cutting off
underground water supply.
A, sank a well on his land and thereby cut off the underground water-supply
from his neighbour B, and B's well was dried up. It was not unlawful for a
land-owner to intercept on his own land underground percolating water and
prevent it from reaching the land of his neighbour. The act did not become
unlawful even though A's motive in so doing was to coerce B to buy his land
at his own price. A, therefore, was not liable to B, however improper and
malicious his motive might be.
3(D) Distinctions Illustrated
The distinctive features of a voluntary act and characteristic of different
mental elements have been noticed above. These are highlighted by an
admirable illustration given by Prof. Street: "If a man throws a stone at a
woman, his trespass to her person is intentional; that he threw it because
she had jilted him would be immaterial in determining his liability in
trespass-that would be his motive.
If he did not throw the stone for the purpose of hitting her but ought to
have foreseen that it was likely that the stone would hit her, his act would
be unintentional but nevertheless negligent. If the stone hit her solely
because it rebounded off a tree at which he had thrown it, his conduct would
be voluntary; and the hit would be accidental.
But, if, while he was holding the stone in his hand, a third party seized
his arm and by twisting it compelled him to release his hold on it,
whereupon it fell on the woman, his conduct would be involuntary and could
never give rise to liability on his part."
Two comments here are necessary. In the case where the stone thrown at a
tree rebounds and hits the woman it is assumed that the risk that the stone
on rebound may hit the woman could not be reasonably foreseen which
negatives negligence, and, therefore, it is an accident thought he act of
throwing the stone is voluntary. In this case also there will be no
In the last case, where a third person twists the arm of the person holding
the stone and the stone gets released, the act of the person holding the
stone is involuntary and so he would not be liable for trespass; but, the
person twisting the arm and compelling the release of the stone so that it
may hit the woman will be guilty of trespass.
Malfeasance: Misfeasance: Nonfeasance
The term "malfeasance" applies to the commission of an unlawful act. It is
generally applicable to those unlawful acts, such as trespass, which are
actionable per se and do not require proof of intention or motive. The term
"misfeasance" is applicable to improper performance of some lawful act for
example when there is negligence.
The term "nonfeasance" applies to the omission to perform some act when
there is an obligation to perform it. Nonfeasance of a gratuitous
undertaking does not impose liability; but misfeasance does. Where there is
a duty towards the individual injured, to do the act by the omission whereof
the injury is caused, the nonfeasance of such an act gives rise to a cause
of action to the same extent as a misfeasance of an act of which there is a
duty to perform in a particular manner.
The terms malfeasance, misfeasance and nonfeasance are of very wide import
but they cannot cover a case of breach of public duty which is not actuated
with malice or bad faith such as defective planning and construction of a
Fault It has been seen that damage caused to a person when no legal right is
violated does not give rise to any tortious liability even if the act
causing the damage is done intentionally with an improper motive. It has
also been noticed that mental element such as intention, negligence, malice
or motive in association with an act or omission which is violative of a
right recognised by law plays an important role in creating liability.
Tortious liability here has an element of fault to
support it. There is, however, a sphere of tortious liability which is known
as absolute or more properly, strict, where the element of fault is
conspicuously absent. One of the important examples of strict liability is
the rule in Rylands v. Fletcher, that the occupier of land who brings and
keeps upon it anything likely to do damage if it escapes is bound at his
peril to prevent its escape and is liable for the direct consequences of its
escape even if he has not been guilty of any negligence.
A more important example of strict liability is the rule laid down in M.C.
Mehta v. Union of India, that an enterprise engaged in a hazardous or
inherently dangerous activity is strictly and absolutely liable for the harm
resulting from the operation of such activity. Another example of liability
without fault is the liability of a master for the tort committed by his
servants in the course of employment. There are also many duties and
liabilities imposed by statutes
on employers, e.g., the Factories Act, the Workmen's Compensation Act, where
the element of fault is absent. A large increase in motor accidents gave
rise to the view, that the victims and their dependants should be allowed
certain amount of compensation on no fault basis without prejudice to their
right of getting higher compensation on the principle of fault and this was
first implemented in India by the Motor Vehicles (Amendment) Act, 1982.
Damages from radioactive properties of nuclear matter to person or property
of third parties highlighted in international conventions led to imposition
of strict liability by the Nuclear Installation Act, 1965 (U.K.).
Thus, at one extremity are the situations where damage though intentionally
caused is not actionable and at the other extremity are the situations where
the law imposes strict liability without any fault of the defendant. Between
these two extremities lies the area where existence of fault in the form of
intention, negligence or motive is essential to fasten liability on the
wrongdoer. As stated by Holmes: "As the law on the one hand allows certain
harms to be inflicted irrespective of the moral condition of him who
inflicts them, so at the other extreme, it may on the grounds of policy
throw the absolute risk of certain transactions on the person engaging in
them, irrespective of blameworthiness in any sense. Most liabilities in tort
lie between these two extremes, and are founded on the infliction of harm
which the defendant had a reasonable opportunity to avoid at the time of
acts or omissions which were its proximate cause." The sphere of strict
liability falling at one extremity is not insignificant and cannot be
ignored as a mere aberration and a theory propounded, as was done by Salmond,
that fault is the basis of all tortious liability. The views of Salmond have
not been shared by others. Apart from cases of strict liability, the rule
that damages allowable are proportioned to the damage or loss and not fault
also negatives the theory of fault. For example, slight negligence may
unfortunately cause severe damage to a plaintiff and the defendant may have
to pay huge amount as compensation; whereas, gross
negligence may fortunately cause insignificant damage and the plaintiff may
then be allowed only nominal compensation. Moreover, prevalence of insurance
both optional and compulsory to cover risk and liability has diluted the
deterrent factor in the award of compensation.
This is not to say that we have reached the stage when the element of fault
can be ignored. It has already been stated that the wide area falling within
the two extremities of no liability and strict liability is covered by torts
where fault in the form of intention, negligence or motive is essential to
There are also instances where situations originally falling within the
sphere of strict liability have moved upwards and are now embraced within
the area of fault liability. For example, the tort of trespass to person
which was initially thought to be of strict liability has now come to be
recognised as one requiring negligence of the defendant as an
essential ingredient. Further, although the practice of insuring risk and
liability is growing (it is compulsory in respect of accidents arising out
of use of motor vehicles) it has not become so wide as to cover all forms of
risks and liabilities and the award of aggravated and exemplary damages has
the tendency of deterring the defendant to repeat and others in similar
situations to commit the wrongs for which damages are awarded. In view of
these diversities all that can be
said is that if one has to discern some common factor in tortious
liabilities, that factor is flexible public policy, and not fault, which
makes the courts and the legislature to recognise new concepts of right and
duty to meet the needs of advancing civilisation. When public policy
influenced by social justice or similar other considerations requires that
the plaintiff be compensated irrespective of fault, the law provides for
strict liability and where there are no such
considerations, public policy requires that the defendant should not be made
to pay for the loss arising from an event which he could not have avoided
and so the law provides liability on principle of fault.