Unit- 1

Introduction and Principles of Liability in Tort :

THE HISTORICAL DEVELOPMENT OF LAW OF TORTS IN ENGLAND

INTRODUCTION

Tort law is a body of law that addresses and provides remedies for civil wrongdoings not
arising out of contractual obligations. A person who suffers legal damage may be able to use tort law
to receive compensation from someone who is legally responsible, or liable, for those injuries.
Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances
under which one person may be held liable for another’s injury. Tort law spans intentional and
negligent acts. Tort law has three purposes. The first is to compensate the victim, the second is to
punish the wrongdoer, and the third is to deter harmful activities.

Under the Hindu law and the Muslim law tort had a much narrower conception than the tort
of the English law. The punishment of crimes in these systems occupied a more prominent place
than compensation for wrongs. The law of torts in India is mainly the English law of torts which
itself is based on the principles of the common law of England. This was made suitable to the Indian
conditions appeasing to the principles of justice, equity and good conscience and as amended by the
Acts of the legislature. Its origin is linked with the establishment of British courts in India.

The expression justice, equity and good conscience was interpreted by the Privy Council to
mean the rules of English Law if found applicable to Indian society and circumstances. The Indian
courts before applying any rule of English law can see whether it is suited to the Indian society and
circumstances. The application of the English law in India has therefore been a selective application.
On this the Privy Council has observed that the ability of the common law to adapt itself to the
differing circumstances of the countries where it has taken roots is not a weakness but one of

its strengths. Further, in applying the English law on a particular point, the Indian courts are
not restricted to common law. If the new rules of English statute law replacing or modifying the
common law are more in consonance with justice, equity and good conscience, it is open to the courts
in India to reject the outmoded rules of common law and to apply the new rules. For example, the
principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been
applied in India although there is still no corresponding Act enacted by Parliament in India.

The development in Indian law need not be on the same lines as in England. In M.C. Mehta
v. Union of India , Justice Bhagwati said, 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.
It has also been held that section 9 of The Code of Civil Procedure, which enables the civil
court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as
principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers
under section 9 for developing this field of liability.
In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J.,
observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it
would be primitive to close strictly or close finally the ever expanding and growing horizon of
tortuous liability. Even for social development, orderly growth of the society and cultural
refineness the liberal approach to tortious liability by court would be conducive.

Meaning of Tort:

The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term
‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or
wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave
in a straightforward manner and when one deviates from this straight path into crooked ways he
has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a
technical term of English law, tort has acquired a special meaning as a species of civil injury or
wrong. It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil cause of
action and for which compensation is recoverable. In spite of various attempts an entirely
satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a
civil wrong independent of contract for which the appropriate remedy is an action for unliquidated
damages. Some other definitions for tort are given below:
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach is redressible by an action for unliquidated
damages.

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust
or other mere equitable obligation.

Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty
arising out of a personal relation, or undertaken by contract) which is related in one of the
following ways to harm (including reference with an absolute right, whether there be measurable
actual damage or not), suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause
harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes
harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and
treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is
an artificial extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not
intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was
bound absolutely or within limits, to avoid or prevent.

The law of torts is fashioned as an instrument for making people adhere to the standards of
reasonable behaviour and respect the rights and interests of one another. This it does by protecting
interests and by providing for situations when a person whose protected interest is violated can
recover compensation for the loss suffered by him from the person who has violated the same. By
interest here is meant a claim, want or desire of a human being or group of human beings seeks to
satisfy, and of which, therefore the ordering of human relations in civilized society must take
account. It is however, obvious that every want or desire of a person cannot be protected nor can a
person claim that whenever he suffers loss he should be compensated by the person who is the author
of the loss. The law, therefore, determines what interests need protection and it also holds the balance
To constitute a tort,
1. There must be a wrongful act committed by a person;
2. The wrongful act must be of such a nature as to give rise to a legal remedy and
3. Such legal remedy must be in the form of an action for unliquidated damages.

I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if it invades the legal right of
another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained 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
interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties
by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a
party or parties) other than the party or parties in whom it resides. Rights available against the
world at large are very numerous. They may be divided again into public rights and private rights.
To every right, corresponds a legal duty or obligation. This obligation consists in performing some
act or refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an
infringement of a legal private right or a breach or violation of a legal duty.

II. Damage
In general, a tort consists of some act done by a person who causes injury to another, for which
damages are claimed by the latter against the former. In this connection we must have a clear
notion with regard to the words damage and damages. The word damage is used in the ordinary
sense of injury or loss or deprivation of some kind, whereas damages mean the compensation
claimed by the injured party and awarded by the court. Damages are claimed and awarded by the
court to the parties. The word injury is strictly limited to an actionable wrong, while damage means
loss or harm occurring in fact, whether actionable as an injury or not.

The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine
Injuria and Injuria Sine Damno.
(i) Damnum Sine Injuria (Damage Without Injury)
There are many acts which though harmful are not wrongful and give no right of action to
him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or
damage without injury. Damage without breach of a legal right will not constitute a tort. They are
instances of damage suffered from justifiable acts. An act or omission committed with lawful
justification or excuse will not be a cause of action though it results in harm to another as a
combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester
Grammar School Master Case , it had been held that the plaintiff school master had no right to
complain of the opening of a new school. The damage suffered was mere damnum absque injuria
or damage without injury. Acton v. Blundell, in which a mill owner drained off underground water
running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however
substantial, caused without the violation of some right.

There are moral wrongs for which the law gives no remedy, though they cause great loss or
detriment. Los or detriment is not a good ground of action unless it is the result of a species of
wrong of which the law takes no cognizance.

(ii) Injuria Sine Damno (injury without damage)

This means an infringement of a legal private right without any actual loss or damage. In
such a case the person whose right has been infringed has a good cause of action. It is not
necessary for him to prove any special damage because every injury imports a damage when a man
in hindered of his right. Every person has an absolute right to property, to the immunity of his
person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible
damage is not, therefore, essential as the foundation of an action. It is sufficient to show the
violation of a right in which case the law will presume damage. Thus in cases of assault, battery,
false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof
of special damage. The court is bound to award to the plaintiff at least nominal damages if no
actual damage is proved. This principle was firmly established by the election case of Ashby v.
White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants,
returning officers in parliamentary election. The candidate fro whom the plaintiff wanted to give
his vote had come out successful in the election. Still the plaintiff brought an action claiming
damages against the defendants for maliciously preventing him from exercising his statutory right
of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was
the infringement of a legal right vested in the plaintiff.

III. Remedy
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no
wrong without a remedy’. 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 it; and indeed it is a vain
thing to imagine a right without remedy; want of right and want of remedy are reciprocal.

Difference between crime and tort:

Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a
criminal one. There are certain essential marks of difference between crime and tort they are:

 Tort is an infringement or privation of private or civil rights belongigng to individuals,

whereas crime is a breach of public rights and duties which affect the whole community.

 In tort the wrong doer has to compensate the injured party whereas in crime, he is punished
by the state in the interest of the society.

 In tort the action is brought about by the injured party whereas in crime the proceedings are
conducted in the name of the state.

 In tort damages are paid for compensating the injured and in crime it is paid out of the fine
which is paid as a part of punishment. Thus the primary purpose of awrding compensation in
a criminal prosecution is punitive rather than compensatory.

 The damages in tort are unliquidated and in crime they are liquidated.

Resemblance between crime and tort:

There is however a similarity between tort and crime at a primary level. In criminal law the
primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem
and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute
a crime and, from another point of view, a tort. For example every man has the right that his bodily
safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of
assault is a menace to the society and hence will be punished by the state. However where the same
wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and
a tort may differ and secondly, the defences available for both crime and tort may differ.
 The wrong doer may be ordered in a civil action to pay compensation and be also punished
criminally by imprisonment or fine. If a person publishes a defamatory article about another in a
newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the
defamatory publication may be taken against him. In [Link]. v. Union of India, the Supreme
Court observed,

In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual
whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to
an individual is ultimately the harm to the society.

There was a common law rule that when the tort was also a felony, the offender would not
be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown
for his non prosecution. This rule has not been followed in India and has been abolished in England.

Tort and contract:

The definition given by P.H. Winfield clearly brings about the distinction between tort and contract.
It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages. A contract is
that species of agreement whereby a legal obligation is constituted and defined between the parties
to it. It is a legal relationship, the nature, content and consequence of which are determined and
defined by the agreement between the parties. According to Salmond, a contract arises out of the
exercise of the autonomous legislative authority entrusted by the law to private persons to declare
and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in
the former are primarily fixed by law while in the latter they are fixed by the parties themselves.
Agreement is the basis for all contractual obligations. "People cannot create tortious liability by
agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your
land because the law says that I am under such duty and not because I have agreed with you to
undertake such duty.

Some of the distinctions between tort and contract are given below:

 A tort is inflicted against or without consent; a contract is founded upon consent.

 In tort no privity is needed, but it is necessarily implied in a contract.

  A tort is a violation in rem (right vested in some person and available against the world at
large.); a breach of contract is an infringement of a right in personam( right available against
some determinate person or body).

 Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.

 In tort the measure of damages is not strictly limited nor is it capable of being indicated with
precision; in a breach of contract the measure of damages is generally more or less nearly
determined by the stipulations of the parties.

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.

Malfeasance, misfeasance and non-feasance

Malfeasance in Tort Law

 Malfeasance is applied when any unlawful act is committed.

 It is relevant to those unlawful acts which are actionable per se

 no proof is required with.

 For example, trespass.

Malfeasance is a broad term covering any act which is illegal and causes physical or financial
harm to another individual. It is an intentional act of doing something wrong, either legally or
morally. The term malfeasance is utilized in both common law and criminal law to narrate any act
which is unlawful or not identified by law. It is not a different crime or tort but the word malfeasance
is used to n7arrate any act that is criminal or any wrongful act which causes injury to any person.
Under tort law, malfeasance has legal effect in civil court and the defendant can be sued by the
plaintiff for monetary damages. It is an act done with an immoral purpose and the person has the
knowledge that the act which is being committed exceeds the authority of the person doing the act

Malfeasance in Tort Law

 Malfeasance is applied when any unlawful act is committed.

 It is relevant to those unlawful acts which are actionable per se

 no proof is required with.

 For example, trespass.

Malfeasance is a broad term covering any act which is illegal and causes physical or financial
harm to another individual. It is an intentional act of doing something wrong, either legally or
morally. The term malfeasance is utilized in both common law and criminal law to narrate any act
which is unlawful or not identified by law. It is not a different crime or tort but the word malfeasance
is used to n7arrate any act that is criminal or any wrongful act which causes injury to any person.
Under tort law, malfeasance has legal effect in civil court and the defendant can be sued by the
plaintiff for monetary damages. It is an act done with an immoral purpose and the person has the
knowledge that the act which is being committed exceeds the authority of the person doing the act

In the case of Dunlop v. Woollahra Municipal Council, it was held that without malice the
claim for misfeasance could not be accepted.

Nonfeasance in Tort Law

Nonfeasance is the failure or omission to perform an obligatory or compulsory act. If a person

promises another person to perform a particular act and does not perform it, then it is nonfeasance
as the person was responsible for performing the act. Nonfeasance is an act of intentionally
neglecting to carry out a duty which is an obligation and because of the failure to perform the
duty, someone is harmed or injury has been caused. It harms another person or causes injury to a
person’s property. It is the lack of ability associated with the failure of the act. Unless and until a
person has a pre-existing relationship he will not be held liable for the failure of the act. It describes
inaction rather than action. Court believes that if people are not creating a dangerous situation then
also they must take proper care in order to prevent other people from a dangerous situation.
The relationships in which a person is forced to do something or is compelled to do
something are spouses, family members, school authorities and students, employee and
employers, doctor and patients, etc, their duty is to protect each other from danger.

In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down in

Chandni Chowk, Delhi, many people were injured and many died. The clock tower was not
repaired for many years and the municipal corporation was required to maintain it. The
Municipal corporation failed to do so and the tower collapsed. The municipal corporation
was held liable as it was their duty to repair the clock which they failed to do. It can be called
as nonfeasance as there was an omission in performing the compulsory act.

Difference between Malfeasance, Misfeasance, and Nonfeasance

The word “malfeasance” is derived from the French word “malfaisance”, which means
“wrongdoing”.

The word “misfeasance” is derived from the French word “misfeasance”, meaning “to
mis-do”.

The word “nonfeasance” is derived from the French word “faisance” meaning “action”,
and the prefix non– which means not.

It means the “commission of an unlawful Act”. Example: trespass.

It means “improper performance of some lawful act”. Example: negligence.

Failure or omission to perform an act when there is an obligation to perform that act.
Example: omission or wrongful act.