Assistant lecturer

Miss Hemlata Das

UNIT-1

1-DEFINITIONAND NATURE

2-TORTS ANDCRIME

3-TORT AND BREACH OF TRUST.

LAW OF TORTs

In common sense the law of torts is the branch of law controlling the
behaviour of the people In society. It’s main aim is to define individual’s
rights and duties in the light of prevalent standards of reasonable conduct
and public convenience. It provides pecuniary remedy for violations done
against the private rights of an individual. The principal aim of the law of
torts is compensation of victims or their dependents.

Recently, shashi J observed

“ Truly speaking entire law of torts is formed and structured on mortality

that no one has a right to injure or harm intentionally or even innocently.’’

This branch of law has attained great importance in England and other
western countries, though not to the same extent in India. The law of torts
as administered in India is the English law as found suitable to Indian
conditions and modified by the acts of Indian legislature. The law of torts
was introduced through British courts in India . The first British courts
established I India were the mayor’s courts in the three presiding towns of
Calcutta, Bombay and Madras. The charters which established these courts
introduced the English common law and statute law in India. The law of
torts is a branch of England common law.

Page 9

Origin and Development-

The Term ‘Tort’ is the French equivalent of the English word ‘wrong’ and
Roman term delict’. Tort is derived from the latin word tortum meaning
twisted or a crooked act or unlawful. This branch of law consists of various
torts or wrongful acts whereby the wrong does violates some legal right
vested in another person.

The law imposes a duty to respect the loyal rights vested in the members of
that duty is said to have done the wrong ful act, As crime is a wrongful act,
which results from the breach of duty recognized by criminal law, a breech
of contract breach of a the non-performance of a duty undertaken by a
party to a contract. Similarly, tort is a breach of duty recognized under the
law of torts.
For Example- violation of a duty to injure the reputation of someone else
results in the tort of defamation, violation of a duty not to interfere with
the possession of land of another person result in the tort of trespass to
land and the violation of a duty not to defraud another results in tort.

As a matter of fact, it is an ever growing branch of law and has constantly

developed and the area covered in its ambit is continuously increasing.

---------

Definition of Tort-

Some of the important definitions, which indicate the nature of this branch
of law, are as under:

1. ‘Tort means a Civil wrong which is not exclusively a breach of

contract or breech of trust’’

U/sec. 2 m the limitation act, 1963

2. “It is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of a
contract or the brech of a trust or other merely equitable obligation.”
-- Salmond
3. “Tortious liability arises from the breach of a duty primarily fired by
the law: this duty is towards persons generally and its breech is
redressible by an action for unliquidated damages” – Winfield
 4. “It is an in fragment of a right in rem of a private individual giving a
right of compensation at the suit of the injured party” – Fraser.
5. “A tort is an act or omission which is unauthorised by law. And
independently of contract.
1. Infringes either
a. some absolute right of another or

b. Some qualified right of another causing damages

c. Some public right resulting in some substantial particular damages to

some person, beyond that which is suffered by the public generally.

ii. Gives rise to an action for damages at the suit of the injured party.”

- underhill
6. “A tort as a wring independent of contract for which the apporiate
remedy is a common law action.”

- clerk and hindsell

7. “The judicial committee of the privy council in Rogers vs Rajendra dutt,

1860 “An act or omission which prejudicially affects another and some legal
right giving him a right to claim damages.”

On the basis of these definitions it may be said that three distinct factors
are essential to constitute a tort-

1.There must be an act or omission which amount to be a civil wrong.

2.Such act or omission should not be breach of contract, trust etc.

3.The remedy for such wrongful act or omission should be anaction for
unliguidated damages.

The basic idea which is indicated by these definitions is tort is a civil wrong
 5

And every civil wrong is not a tort. There are other civil wrongs also, the
important of which are a breach of contract and breach of trust.

As stated above no such scientific definitionof tort has been possible which
could explain this wnong by montioning various elements, the presence of
which could be considered to be a tort.

Thus, according to Winfield, in order that a penson may be held responsible

in tort, the following conditions must be fulfilled –

1. There should be breach of a duty

2. This duty should be primarily fixed by law.
3. This duty should be towards persons generally
4. Remedy for the breach of aforesaid duty should be available in the
form of un liquided damages.

An analysis of the above definitions, we can say that professor Winfield

tried to give a complete meaning of tort. His definition gives a satifaction
than others so his definition is called the best definition of tort. We find
three main points around which professor winfield’s definition revolues.
They are –

1. Duty
2. Breach
3. Remedy in form of unliquidated damages

Now we shall consider these element in detail-

1. Duty- Acc to this definition, law imposes duty on every person in the
society. The law also expects that all persons will observe these
6

2. Duties and will not make a breach of them. A person inars liability in
tort when he makes a breach of such duty. There are two special
features of the duty contemplated in the defintions they are-
a. Duty primarily fixed by law
b. Duty towards persons generally
3. Breach-
Breach means non obesvance of the duty as aforesaid. Liability will arise
only when there is a breach of duty.

4. Remedy in the form of unliquidated damages-

It is the same as envisaged in salmonds definition. Damages is the most
important remedy for a tort. After the wrong has been committed
generally it is the money compensation which may satisfy the injured
party. For example the reputation of a person has been injured the
original positon can not be restored back.; the only thing which can be
done in such case is to see what is the money equivalent to the harm by
way of defamation and the Sam so arrived at is asked to be paid by the
defendant to the plaintiff. There are other remedies also which could be
available when the tort is committed.

Damages in the case of a tort are unliquidated. It is this fact which enables
us to distinguish tort from other civil wrongs, like breach of contract or
breach of trusty where the damages may be liquidated. Liquidated
damages means such compensation which has been Previously determined
or agreed to by the parties.

When the compensation has not been so determined but the

determination of the same is left to discretion of the court, the damages
are said to be unliquidated.
At last we can draw a conclusion that a tort may be defined as a wrong
consisting of violation of a right recognized and enforced by law for which
the appropriate remedy is an action for unliquidated damages.

To constitute a tort, it is essential that the following two conditions ae

satisfied as there must be some act or omission an the part of the
defendant and the act or omission should result in legal damages, violation
of a legal right vested in the plaintiff. Now we see that there are following
characteristic features of the concept of trot. As we sec, a tort arises by the
operation of law and not by the consent of any particular person. On this
basis tort may be distinguished from the breach of contract. And in many
tort actions the appropriate remedy is unliquidated damages though it is
not the only remedy available in field of tort. There are other remedies
also for ex -injuction, selfhelp etc but unliquidated damages is the
dominant remedy in tort.

Nature of Tort

The nature of law of tort may be better understood by distinguishing it

from other related branches of law, for example beach of contract, crime,
bailment and trust etc.

Tort and Breach of contract

A tort must also be distinguished from a pure breach of contract. Generally
rule see that a breach of contract results from the breach of duty
undertaken by the parties themselves.

While a tort, on the other hand, results from the breach of such duties
which are not undertaken by the parties themselves but which are imposed
by law. Duties imposed by law under law of torts are not towards any
specific individual or individuals but they are towards the world at large.

Donoghue v. Stevenson, 1932 ac 562

In this case, the manufacturer of drinks owes duty of care to every possible
consumer of his product.

A, went to a restaurant with a woman friend and bought one bottle of

ginger-beer manufactured by the defendants. The woman consumed part
of the contents but when the remainder was poured in to the glasses she
observed the decomposed body of a snail init the woman brought an action
against the manufacturers for negligence and allayed that by taking a part
of contaminated drink, she had contracted serious illness.

The house of lords held the manufacturer owed her a duty to take care that
the bottle did not contain noxious matter injurious to health. Referring to
the liability of the manufacturer of food articles.
 9

In contract, the duty is based on the privet of contract and each party ours
duty only to the other contracting party. If A and B make a contract. A,s
duty is towards B and bonley similary, B does not owe any duty in respect
of this contract to any person other than A. That is why we find the rule.
That a stranger to a contract cannot see.

iii. damages is the main remedy both in an action for the breach of contract
as well as in an action for tort. In breach of contract, the damages may be
liquidated where as in an action for torts they are always unliquidated.

we may put the distinctive feature of tort and contract in the following
tabular form:

Point Tort Contract

1. Determination of Duty Primarily fixed Duty fixed by parties

duties
2. Social and specific By law
person
Duty towards person Duty towards specific
generally right in rem person right in
3. Suing matter persanam

In tort case, either

victim or his legal In contract case, only
representative can contracting parties
4. Intension due the file. can sue the file.
 Some times in tort,
intension is important
In Breach of contrite,
as defamation
intrusion is not
5. Motive
Motive in certain tort important
relevant
Motive is irrelevant
6. Damages
In an action for fort,
damages are
unliquidated In a breach of
7. Remedies contract, the
In tort the main
damages may be
remedy is damages
liquidated
while other remedies,
e g injunction are only In breach of contract
supplementary or the main remedy is
subsidiary or specific performance
additional remedies of the contract.

Law & tort protects a

8. Protection person’s body,
property and
reputation. But it is not in this
matter.
Note- Breach of contract and tort over laping-

It is oftenlly seen the case the same wrong is both a breach of contract as call as
tort. In such case, only a remedy is available for victim. Wheather he may
proceding for damage in law of tort or compensation in breach of contract. So it
is said that when any wrong is both a breech of contract and tort, it is voluntarily
remedy. Thus the boundary line between tort and breech of contract is at times
observed. winfield rightly remarks,

Though liability in tort and in contract is quite distinct, the same fact may
nevertheless create alternate liability in tort or in contract. I can not recover
damages twice over, but I may will have alternate claims for damages under
differenct heads of legal liability.

Page 11

Junior Books

v.

veitchi

In this case, there is a lot of overlap between tort and breach of contract. But it is
wrong to say that there are cases of torts founded and contract. Thus, if a
contract exists between A and B to break the contract. Here ‘c’ comimits a tort.
No doubt, there are cases of this type but the right of action in such cases is
independent of contract. It is an independent right.
 Dr. sharad vaid

v.

pentro aIR 1992 Bombay 478

in this case, Bombay high court held that there is no contract between patient
and doctor. Patient needs medical service. If the doctor is negligent at that time
he is responsible for tort. In the absence of some express contract between
doctor and patient. The doctor cannot be held responsible for making breach of
contract his liability will be tortuous.

Tort and Crime

Before we distinguish fort and crime. It is necessary that a definition of crime be

given.

Acc to Pro. Kenny” crimes are wrongs whose sanction is punitive and is no way
remissible by any private person but is remissible by the crown alone, if,
remissible at all.” A tort is widely
different from a crime. A tort differs from a crime in the following respect:

Page 12

A tort is widely different from a crime. A tort differs from a crime in the following
respect:

Points Tort Crime

1. court The case of tort is sued The mater of criminal is
in civil court sued in criminal court

Tort is an infringement Crime is a breach of

2. Right
of the private or civil public rights and duties
right belonging to
individuals

From wrong act, agrivd

party or his legal Crime affects the whole
3. Effect
representative effect community. So whole
society or state effect
In tort, a case can be
withdrawed make the In crime, except some
4. withdrawal of the settlement at any time.
suit Exceptional matters, a
case can not be
withdrawed.
The main object of
tortuous proceding, to The main object of
5. Object
provide the damages of criminal proceeding to
victim. award the punishment
so that others may fear
to do wrong and to
maintain the law and
order in society.

In crimes, the
In a tort remedy is to
proceeding meant to
claim damages for the
prevent it repetition by
injury in a civil court
6. Remedy punishing the wrong
doer.
 Intension is essential
element of crime.
Intension is not
necessary to commit a
civil injury
7. Intension

Distinction between tort and crime has been thus put up by Holds worth:

The only certain lines of distinction are to be found in the nature of remedy given
and the nature of procedure to enforce the remedy. If the remedy is given the
compensation, damages or a penalty imposed by a civil action, the wrong so
redressed in civil wrong.

If the remedy given is punishment of the accused, which is enforced by the

prosecution at the suit of the crown, the wrong so redressed is crime or criminal
in nature.

P. Rathinam Nagbtiushan

v.

Union of India, AIR 1994 s.c. 1844

Indian supreme court while considering the constitutionality of section 309,

Indian penal code, also explained the difference torts and crime. The court held
that it cannot be said that the torts only affect the individual; it finally reaches to
the society.
 TORT AND BREACH OF TRUST

In the case of breach of trust by the trustee, the beneficiary can claim such
compensation which depends upon the loss that the trust could be redressed in
the court of chanceny.

There is a lot of difference between tort and breach of trust as following-

As we know that the law of torts is fashioned as ‘an instrument for making people
adhere to standards of reasonable behaviour and respect the rights and interest
of one another.”

If a person whose protected interest is violated, he can recovery

compensation for the loss suffered by him from the person who has violated the
same. Here the meaning of interest is a claim want or desire of a human being or
group of human beings which seeks to satisfy and of which, therefore, the
ordering of human relations in civilized society. The law therefore. Determines
what interests need protection and it also holds the balance when there is a
conflict of protected interests. A protected interest gives rise to a legal. Right
which in turn gives rise to a corresponding legal duty. Some legal rights are
absolute in the sense that mere violation of them leads to the presumption of
legal damages. An act which inferinges a legal right is a wrongful act but every
wrongful act is not a tort. To constitute a tort or civil injury- wrongful act, legal
damages and legal remedy in the form of an action for damages.
 DAMAGE

Generally we see that damage means the harm or lass suffered or presumed to be
suffered by a person as a result of some wrongful act of another. The sum of
money awarded by court to compensate damage is called demages.

Page 16

From the point of view of presumption of damage, rights are classified in to two
categories as –

Damages

Absolute damage qualified damage

It is actionable not actionable

When an absolute right is violated the law conclusively presumes damage

although the person wronged may have suffered no pecuniary loss what so ever.
The damage so presumed is called legal damages violation of absolute right is
therefore, actionable perse without proof of any damage.
In case of qualified rights, there is no presumption of loyal damage and the
violation of such rights is actionable only on proof of actual or special damage. In
a qualified right, the injury or wrong. Is not complete unless the violation of the
right results in actual or special damage.

Thus, the test to know whether the defendant should no should not be liable is
not whether the plaintiff has suffered my loss or not but the real test is whether
my lawful right used in the plain tiff, has been violated or not.

From two maxims can be easily understand the legal right concept. The maxims
may be studied in detail-

Page 13 2.8

INJURIA SINE DAMNO

INJURIA SINA DAMNO

LEGAL INJURY WITHOUT DAMAGE

INFRINGEMENT WITHOUT ACTUAL PHYSICAL

OF A LEGALLY LOSS

PROTECTED INTEREST
In juria sine Damno means violation of a legal right without causing any harm, loss
or damage to the plaintiff. We know very well that there are two kinds of torts.

1. Those torts which are actionable perse, actionable without the proof of any
damage or loss. As trespass to land is actionable even though no damage
has been caused as result of the trespass secondly. The torts which are
actionable only on the proof of some damage caused by on act.
2. Injuria sine Damno covers the first of the above stated Cases. In such cases,
there is no need to prove that as a consequence of an act. The plaintiff has
suffered any harm. The infringement of an absolute private right without
any actual less or damage the person whose right is infringed has a cause of
action. Every person has a absolute right to his property, to the immunity
of his person.

Ashby

v.

white 1703

In this leading case, the defendant, returning officer, wrongfully refused to

register a duly tendered vote of the plaintiff, a legally qualified voter, at a
parliamentary election and the candidate for whom the rote was tendered was
elected and no loss was suffered by the rejection of the vote, never the loss it
was held that an action lay. In this the returning officer had acted maliciously.
In this case, no loss was suffered by such refusal because the candidate for
 whom he wanted to vote won the election in spite of that. It was held that the
defendant was liable.

Bhim singh

v.

state of J & K IR 196 SC 494

In this case, the petitioner, an M.L.A. of J&K assembly, was wrongfully

detained by the police while he was going to attend the assembly session. He
was not produced before the magistrate within requisite period. AS a
consequence of this, the member was deprived of his constitutional right to
attend the assembly session. There was also violation of fundamental right to
personal liberty guaranteed materart21 of the constitution. By the time the
petition was decided by sc, Bhim singh released and granted relief. Exemplary
damages amounting to Rs.50,000 were awardees to him.

Kalikissen Tagor

v.

Jadoo Lal Mallick

The privy council has observed that “there may be, where a right is interfered
with injuria sine Danmo,sufficient to find an action.
Bhikhi Ojha

V.

Harakh kandu in this case ,Straight.j.observed-“if it is clearly established that the plantiff possed this
right was infringed by the defendents to his pecuniary detriment and loss by the action of these
defendants ,he in my opinion is entitled to maintain this suit and plaintiff may be showen to have
sustained.

DAMNAM SINE INJURIA

Damnam Sine Injuria

Damages without Legal Injury

Actual without infringement

Physical loss of a legally

Protected interest

The underlying principle of the maxim means that damage without injury is not
actionable more loss in money or money worth does not itself constitute legal
damage where there has been no infringement of any legal right. The mere fact
of harm or loss will not render such act or omission actionable although the loss
may be substantial or even irreparable. Damage so done and suffered is called
‘damnum sine injuries’ actual and substantial loss without infringement to any
legal right and in such cases no action.

Hence the implication of the maxim is that loss or detriment is not a ground of
action unless it is the result of a species of wrong of which the law takes
cognizance. Thus we can explain that if I have a mill, and my neighbor sets up
another mill and there by the profits of my mill fall down, I can not bring an action
against him though I have suffered damage.
-Gloucester shire grammar schools cases

Page 20

The defendant, school master set up a rival school next door to the plaintiffs and
the boys from plaintiff’s school flocked to that of the defendant. Held, no action
lay, as no damage was caused by a rival in the exercise of the right to employ are
self in one’s calling without let or hindrance and freely competing with one’s rivals
in the same calling. But no an action can be lied.

Grant

V,

Australia knitting mills, 1935

In this case, it held that-

“the mere fact that a man is injured by another’s act gives in itself no cause of
action, if the act is deliberate, the party injured will have no claim in law even
though the injury is interntional, so long as the other party is exercising a loyal
right.

Anand singh

v.

Ram chendra Air 1963, MP 28

In this case, the defendant built two pacca walls on his lend on two sides of his
house the result of this action was that the water flouring through a lane
belonging to the defendant and situated between the defendants and plaintiff’s
house damaged the walls of the plaintiff, plaintiff had not acquired any right of
easement.

It was held that the defendant by building the walls on his land had not in any way
violated the plaintiff’s right. This was held to be a case of damnum sine injaria and
no right of action accured to the plaintiff.

Vishnu dutt sharma

v.

Boad of high school and international education u.P. Air 1981

In this case a student suffered less of one year because he was detained for
shortage of attendance But it was found that the college did not maintain a
register for attendance. The college acted in violation of a regulation of U.P.
Board. It was was held that a suit for compensation for less of one year was not
maintainable. It was held that a suit for compesation for loss of one year was not
maintainable. It was a case of damage without legal injury.

Dickson

v.

reuter’s telegraph company 1877

A sent a telegram to B for the shipment of certain goods. The telegraph company
mistalking the registered address of c for that of B delivered the telegram to C.C
acting on the telegram sent the goods to A, A refused to accept the goods stating
that he had ordered the goods not from C, but from B.C sued the telegraph
company for damages for the loss suffered by him. It was held that C, had no
cause of action against the company, for the company did not owe. Any duty of
care c and no legal right of c, could therefore, be said to have infringed.

UBI Jus IBI REMEDIUM

The true maxim established for the first time in the case of-

ASHBY

WHITE,

In this case, C J Holt said that if man will multiply injuries, action must be
multipled too. For energy man injured ought to have recom pense.The law of tort
is said to be a development of the above maxim. The wordly meaning of this
maxim is Jus signifies the legal authority to do or to demand something and
remedial may be defined to be the right of auctioneer the means given by law, for
the recovery or assertion of a right.

If a man has a right, he must be of necessity have a means to indicate and

maintain its and a remedy if he is injured in the exercise or enjoyment of it. And it
is a vain thing to image a right without a remedy want of right and want of
remedy are reciprocal.

_________________ _______________________ ____________________-

2.8.13

1 page

The court had fixed the nature and extent of the governmental liability for the
tortioul acts of their servants. In this case the government was held liable for the
tort of its servants in the course of transactions.

The secretary of state for India in council

v.

Hari Bhanji, 1882

State of Rajasthan

v.

Mst. Vidyawati AIR 1962

In this case, the driver of a jeep, repaired

Malice
Malice in fact Malice in law

Express implied

Malice in fact –

Express or actual malice or malice in fact means an act done with ill-will towards
an individual. In the ordinary tense. Ill-will, haltered, enmity against a person.

Malice in fact-implied-

Implied malice means a wrongful act done intentionally without any just cause or
excuse.

In the popular sense or as malice in fact or actual malice, it means an evil motive
for wrongful act when the defendant does a wrongful act with a feeling. of spate
vengeance or ill will, the act is said to be done maliciously. Motive means an
ulterior reason for the conduct it is different from intention, which realer to the
worgful act itself.

The immediate intention of a person may be to commit theft, the motile for the
theft may be to buej food for his children or to help a poor man. As a general
rules motive is not relevant to determine a persons liability in the law of torts. A
wrongful act does note become. Lawful merely because the motive is good.
Similarly a lawful act does not become wrongful because of a bad motive or
malice.

Malice in law-

Malice in law or legal malice is a term which is practically superfluous as in law

every furious act is impliedly malicious on account of its being a legally wrongful
act.

The word malice in law signifies either- 1. The intentional doing of a wrongful act
with out just cause or excuse

2. an action determined by an improper motive. To act maliciously means some

times to do the act intentionally, while at the times it means to do the act from
wrong and improper motive of which the law disapproves.

Bayle-J-

Borage

Pros seas 1825

In this case justice Bayle said that malice in common acceptance means ill will
against a reason but in its legal sense. It means a wrongful act done intention
alley without just cause or excuse

S.R. Renkataraman

V
Union of India Air 1979

The supreme court held that ‘a wrongful act is rat reconverted into a lawful act by
a good motile. Because a generically rule motiue is not relevant to determine a
reason’s liability in the law of torts.

Town area committee

Prabhic dayal Air 1975

Allahabad high court held that the demolition of a building illegally constructed
was perfectly lawful. The court did not investigate the question whether the act
was done male not as the same was encoders to be inelegant.

Distinction between malice in fact and malice in law

1 malice in fact is an act done with ill will towards an indiudual.

While malice in law means an act done wrongfully and without reasonable and
probable cause. In order to legal. Malice the act done must be wrong feel.

2. malice in fact, depends upon motive. While malice in law depends upon
knowledge

3 malice in fact, means will or any improper notice against a person but in its Leal
sense, malice in law means the concurrence of the mind with a wrongful act one
with a wrongful act done without just cause excuse.

Exceptions to the rule of malice-

In the following exceptional eases, malice or evil motive becomes relevant in
deterring liability under the law of torts:

1. in the tonts of deceit, conspiracy malicious pro secuticion and injuries

fleered one of the essentials to be proud by the plaintiff is malice on the
part of the defendant.
2. in certain cases of defamation, when qualified privilege or fair comment is
pleaded as a defense matinee becomes relevant.
3. malice or evil motive may result in aggravation of damage
Question 1. Define law of torts and explain the essential elements of a tort.

Question 2. What do you mean by malice? Explain the kinds of malice with the reference of decided case
laws

Question. 3. Explain the Maxim injuria sine damnum and damnum sine injuria pida special reference of
of leading case laws.

Question 4. Make the difference between law of torts and crime