NATURE AND FUNCTIONS

LAW OF TORTS
Module - I

INTRODUCTI
ON
(Sessions
05)
Evolution of Tort law in England and India

I.
II. Definition- What is Tort? constituents of torts
III. Nature of tort- Tort distinguished from contract,
Quasi-contract, breach of trust and crime
IV. Functions of Tort Law
V. Home Work
Legal text:
Indian Contract Act, 1872
Indian Penal Code, 1860
Indian Trust Act, 1882
Civil Procedure Code, 1908
Insurance Act , 1938
01/29/16

EVOLUTION OF TORT LAW

01/29/16

TORT

01/29/16

A
transgression
from the right
conduct, a
wrong

01/29/16

POSITION of England

The term tort was introduced into the

terminology of English Law by the French
speaking lawyers and Judges of the
Courts of Normandy and Angevin Kings of
England. As a technical term of English
law, tort has acquired a special meaning
as a species of civil injury or wrong.
Till about the middle of the 17TH C tort
was an obscure term, at a time when
procedure
was
considered
more
important than the right of an individual.
[ubi remedium ibi jus]
5

 This emphasis on procedural aspect for

determining the success for a case continued for
some 500 years, till 1852, when the Common Law
Procedure Act, 1852 & Judicature Act, 1873
came into existence.
-primacy of substance over the procedure
gradually gained firmer ground and the maxim as
it stands is ubi jus ibi remedium, i.e. where there
is right there is remedy was adopted.
The principle that where one's right is
invaded or destroyed, the law gives a
remedy to protect it; damages for its loss.
Further, where one's right is denied the law affords
the remedy of an action for its enforcement.
01/29/16

Ashby v White ( 1703 ) 92 ER 126

Mr Ashby was prevented from voting at an
election by malicious intention of the returning
officer, Mr White, on the apparent pretext that he
was not a settled inhabitant. It was contended for
the defendant that the plaintiff had not sustained
any actual or pecuniary damage consequential
on the defendants illegal conduct.
Held- Holt CJ- If the plaintiff 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 a remedy; for want of right
and want of remedy are reciprocal...
01/29/16

 ContdAnd I am of opinion, that this action

on the case is a proper action. My brother
Powell indeed thinks, that an action
upon the case is not maintainable,
because here is no hurt or damage to
the plaintif; but surely every injury
imports a damage, though it does not cost
the party one farthing, and it is impossible to
prove the contrary; for a damage is not
merely pecuniary, but an injury imports a
damage, when a man is thereby hindred of
his right
01/29/16

 As in an action for slanderous words,

though a man does not lose a penny by
reason of speaking them, yet he shall have an
action.
So if a man gives another a cuf on the
ear, though it cost him nothing, yet he shall
have his action, for it is a personal injury.
So a man shall have an action against
another for riding over his ground, though
it do him no damage; for it is an invasion of
his property, and the other has no right to
come there.
So here in the principal case, the plaintiff is
obstructed of his right, and shall therefore
have his action.
01/29/16

01/29/16

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
10

 The Indian law of torts based on

English law is continued by Article
372 of the constitution which has
been interpreted to continue also the
principles applied in India.

01/29/16

11

 The words natural justice are derived

Natural Justice
from the Roman word Jus Naturale,
justice, equity and good
which means principles of natural law,
conscience
justice, equity, and good conscience.
These principles did not originate from
any divine power, but are the
MEANING outcome of the necessity of judicial
JUSTICE, EQUITY
thinking, as well as the necessity to
AND GOOD
evolve the norms of fair play.
CONSCIENCE
These are the principles which every
disciplinary authority should follow
while taking any decision, which may
adversely
affect
the
rights
of
individuals.
It is to be seen that rules of natural
justice are not codified anywhere;
they are procedural in nature and
their aim is to ensure delivery of
justice to the parties.
01/29/16

12

 The 1975-1984 reflection of urbanization

and the capitalist mode of production have
started influencing the nature of tort
litigation centering on negligence and
strict liability and in the further period of
development nuisance which was initiated
in 1980s has taken the lead of torts
litigation with the development of absolute
liability initially only to the hazardous
industries started engrossing almost all
types of industrial further.
01/29/16

13

Conclusion
Tort law still remains to be uncodified branch of law. Indian
judiciary were creative and activist in
shaping injunctions and remedial
rather than to focus on developing a
clear corpus of tort law

01/29/16

14

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.
01/29/16

15

Fundamental Principles

01/29/16

16

Nature
What is tort?

01/29/16

17

01/29/16

DEFINITIONS

Salmond and HuestonA 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 a contract or the breach of a
trust or other mere equitable obligation.
Common Law Procedure Act, 1852
a wrong independent of contract.
Fraser a tort is an infringement of right in rem of a private
individual giving a right of compensation at the suit of
the injured party.
Section 2(m) limitation act, 1963, tort means a civil wrong
which is not exclusively a breach of contract or breach of
trust..
18

WINFIELD DEFINES TORT AS

TORTIOUS
LIABILITY

01/29/16

ARISES

BREACH OF DUTY

PRIMARILY
FIXED BY LAW

NOT
VOLUNTARILY
ASSUMED

TOWARDS
PERSONS
GENERALLY

RIGHT IN REM
AND
NOT
PERSONAM
UNLIQUIDAT
ED
DAMAGES

19

WINFIELDS
Tortuous liability arises from the breach
of a duty [ INFRINGEMENT OF RIGHT AND HENCE
WRONG],
primarily fixed by law [SAYS OBLIGATION IS NOT
FIXED AMONG THEM AND HENCE NOT A CONTRACT
/TRUST],

this
duty
is
towards
persons
generally[ RIGHT IN REM] and
its breach is redressable by an action for
unliquidated damages[This Differentiate From
Liquidated Damages]
01/29/16

20

TORT , CONTRACT AND CRIME

BLURRED BOUNDARIES

01/29/16

21

Difference Between
Tort & Contract

TORT

Right in Rem
Duty Fixed by law in torts
Motive-SOMETIMESRelevent
Unliquidated Damages
QUANTUM OF LOSS is not
fixed as the parties are not
known to each other.
Capacity / Parties - Minors
can be sued in tort
Limitation period of filing
suit begins when the
damage is suffered

01/29/16

CONTRACT

Right in Personam
Contractual Duties- duties
fixed by parties
Motive Irrelevent
Liquidated Damages
Capacity to contract / Parties
- Minor has no contractual
obligation
Limitation
period
begins
after
the
breach
of
obligations
Role of consent
Positive circumstances v.
punitive measures
Agreement: written / verbal
22

SIMILARITIES
TORT & CONTRACT
INFRINGEMENT OF PRIVATE RIGHT
ACTION BY INJURED PERSON
DAMAGES (COMPENSATION) IS MAIN
remedy

01/29/16

23

Privity of Contract and Tortious

liability
If there is a contract between A and
B and as a result of the breach of
contract by A, injury is caused to C,
the question is : can C who is
stranger to the contract, bring an
action against A, whose breach of
contract with B has also resulted in
the commission of tort against C?
01/29/16

24

 Winterbottom v Wright (1842) was

responsible for introduction of this
privity of contract fallacy into the
law.

01/29/16

25

THE SNAIL IN THE

BOTTLE
Donoghue v
Stevenson (1932)

01/29/16

Privity of contract
and tortuous liability
The action in tort is
independent of a
contract
and
the
rule that privity of
contract is essential
for an action in tort
is highly irrelevant
and unjust.

26

Klaus Mittelbachert vs East India Hotels Ltd

AIR 1997 SCC.
Lufthansa Airlines had a contract with Hotel Oberoi
Intercontinental for the stay of its crew. One of the
co-pilots was staying there took a dive in the pool.
The pool design was defective and the person's head
hit the bottom. He was paralyzed and died after 12
yrs. The defendants pleaded that he was a stranger
to the contract.
It was held that he could sue even for the
breach of contract as he was the beneficiary of
the contract. He could also sue in torts where
plea of stranger to contract is irrelevant.
The hotel was held liable for compensation even
though there was no contract between the person
and the hotel and the hotel was made to pay 50
Lakhs as exemplary damages.
01/29/16

27

Quasi- Contract
In various types of cases a person is under
a duty to restore a benefit unjustly obtained
by him at anothers expense. The duty is
imposed by law in the interest of justice eg.
To repay money received by mistake,
To restore chattels so received or their
value,
It is also called as of certain relations
resembling those created by contract or
unjust enrichment.
01/29/16

28

 It differs from tort in two respects It may arise independently of the

commission of any tort
The claim in quasi contract is usually
for a liquidated sum of money or the
value of chattels or services
specified.

01/29/16

29

Difference Between
Tort & Crime
TORT

Wrong private, civil.

Eg: obstruction in front of
particular house
UNCODIFIED
RULES OF Civil court
Remedy -Compensation on an
action
brought
by
the
individual victim
Compensation
as
main
objective

CRIME

01/29/16

Public WrongAgainst the

state. Even though the victim
is individual
Eg: obstruction of public road
CODIFIED
RULES OF Criminal court
standard
of
proof
more
stringent
Punishment
/fine
on
a
complaint made by the public ,
state authority prescribes the
punishment.

Concerned with protection of

society by deterring wrongful
behaviour; punishment of
criminals
30

SIMILARITIES
TORT & CRIME

BOTH ARE RIGHT IN REM

EXAMPLES NUISANCE
CONCURRENT LIABILITYRanganagulu v. mullackal devaswam
AIR 1974 KER 25
Campbell v Padington corp. [(1911) 1
KB 869]
01/29/16

31

 Campbell v. Paddington Corporation (1911) 1KB 869

Facts- the owner of a house which adjoined a highway recovered
damages from the defendant council which had obstructed the
highway in front of the plaintiff's house by the constructing a stand
for spectators of a royal funeral. The stand prevented access to the
plaintiff's house of visitors who had paid to see the funeral procession
from her premises.
The plaintiff's claim was for wrongful interference with the use and
enjoyment of her house caused by the stand for which there was no
justification in law. It was a nuisance and the plaintiff had suffered
particular damage as a result.
Also the corporation unlawfully and without any authority erected a
structure in a public street which seriously interfered with the
enjoyment by the plaintiff of her house.
Avory J observed "... moreover, as the wrongful act of the defendants
constitutes a public nuisance, the plaintiff, having in my opinion
established the fact that she has sustained special damage over and
above the general public inconvenience, has established a cause of
action on this ground also.
01/29/16

32

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 property has suffered.
The
amount
of
damages
being
ascertainable before
the beneficiary
brings the action , the damages, in the
case of a breach of trust are liquidated.
Historically the law of tort owes its origin
to the common law of England whereas
the law relating to trust owes its origin to
the Equity court or the Court of Chancery.
01/29/16

33

 Section 3 of Indian Trust Act, 1882 defines trust as

A trust is an obligation annexed to the ownership
of property, and arising out of a confidence reposed
in and accepted by the owner, or declared and
accepted by him, for the benefit of another, or of
another and the owner;
The person who reposes or declares the confidence
is called the author of the trust; the person who
accepts the confidence is called the trustee; the
person for whose benefit the confidence is
accepted is called the beneficiary; the subjectmatter of the trust is called trust-property or
trust-money;
the
beneficial
interest
or
interest of the beneficiary is his right against the
trustee as owner of the trust-property; and the
instrument, if any, by which the trust is declared is
called the instrument of trust;
A breach of any duty imposed on a trustee, as such,
by any law for the time being in force is called a
breach of trust
01/29/16

34

FUNCTIONS LAW OF TORTS

01/29/16

35

Functions
Corrective Justice when one party wrongs
another, correction of the wrong may help to restore
the balance between them.
Loss distributionSometimes defendants are
covered by liability insurance and the insurer literally
pays the plaintiff on behalf of the policy holder or
defendant..in this situation the cost of the loss
suffered by the plaintiff is not simply transferred to
the defendant but is distributed through the
defendant to a large number of individuals.
Optimal Deterrence- the imposition of tort liability
not only corrects wrongs that have already occurred,
it also helps to prevent future tortious actions, by
threatening potential wrongdoers with liability if they
cause actionable harm.
01/29/16

36

 Compensation- Monetary satisfaction

Redress of Social Grievances- the right to
sue in tort promotes the redress of social
grievances, especially against large, impersonal
institutions..in this sense it permits ordinary
people to put authority on trial.
Deep Pocket Theory In tort law, employers
will often be held vicariously liable for the
actions of a negligent employee. This is
consistent with the fundamental principle of tort
law, which is to compensate victims of
negligence. Since employers usually have more
money to pay for negligence, they would be in a
better position to pay the victims.
01/29/16

37

Home Work

01/29/16

38

01/29/16

Interest protected by law of torts

Personal and proprietary interests

Reputation- libel and slander
Interests in economic relationsconspiracy, passing off, deceit etc.
Interests in family relations eg. Extent to
which the parents may sue in respect of
injuries to their children
Interference with judicial processmalicious prosecution
Miscellaneous interests e.g. right to vote
39