Development of Law of Torts in England and India

In one minute

English tort law began with royal writs, which were fixed forms of complaint. Judges stretched them to cover new harms, and the Judicature Acts of 1873 to 1875 removed the writ system. Negligence then grew into a general principle.

India received English common law through colonial courts. It uses the English rules only as far as they suit Indian conditions, and has added its own rules by statute and by Supreme Court decisions. This topic is asked as a long answer, usually with a timeline of cases.

Legal provision

• Judicature Acts, 1873 to 1875 (England): merged the common law and equity courts into one Supreme Court and ended the forms of action.
• Charter of 1726: set up Mayor's Courts in Bombay, Calcutta and Madras, which applied English law.
• "Justice, equity and good conscience": the standard that Indian courts used to decide cases with no statute or custom. It lets them take English rules only where suitable.
• Article 372, Constitution of India: continues the law in force before 26 January 1950 until it is changed.
• Article 300, Constitution of India: the Union and States may sue and be sued. It carries forward the pre-1950 position on suits against the Government.
• Section 9, Code of Civil Procedure, 1908: civil courts may try all suits of a civil nature, which lets them hear claims in tort.

Meaning and definition

The development of the law of torts is the story of how a list of narrow remedies became a body of general principles. In England the change came through judges working within the writ system and then outside it. In India the law arrived from England and was then reshaped by courts and Parliament.

A writ was a royal order that began a civil action, and each kind of wrong needed its own writ. A plaintiff who chose the wrong writ lost, even if the wrong was real.

Detailed explanation

Step 1: England and the writ system

Medieval courts heard a claim only if it fitted a recognised writ. Two writs shaped the law.

• Trespass. This writ covered direct and forcible harm to the person, land or goods, such as a blow or entering land.
• Trespass on the case (action on the case). This writ covered indirect harm, where loss followed from the defendant's act. The Statute of Westminster II, 1285 allowed new writs in similar cases, and the action on the case grew from it. Negligence, nuisance and defamation developed from it.

The old rule was that direct harm needed trespass and indirect harm needed case. In Williams v. Holland (1833), the court allowed an action on the case for a direct injury caused by negligence. This loosened the distinction.

Step 2: the Judicature Acts and the rise of negligence

The Judicature Acts, 1873 to 1875, ended the separate courts of common law and equity and the forms of action. A plaintiff now pleaded the facts and the court applied the right rule. English tort law then grew around the type of fault: intentional harm, carelessness and strict liability.

• Rylands v. Fletcher (1868): liability for escape of dangerous things from land, without proof of fault.
• Donoghue v. Stevenson (1932): a general duty of care to a neighbour, meaning anyone closely and directly affected by your act. This is the foundation of modern negligence.
• Wilkinson v. Downton (1897): liability for a wilful act that causes physical harm, even by a false statement.
• Hedley Byrne & Co Ltd v. Heller & Partners Ltd (1963): liability for careless words that cause financial loss, where there is a special relationship.
• Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co. (The Wagon Mound No. 1) (1961): the test of remoteness is reasonable foresight of the kind of damage.

1. 13th and 14th centuriesWrits of trespass and trespass on the case take shape.
2. 1833Williams v. Holland loosens the line between direct and indirect harm.
3. 1873 to 1875Judicature Acts end the forms of action.
4. 1932Donoghue v. Stevenson states the neighbour principle.
5. 1961 and 1963The Wagon Mound No. 1 and Hedley Byrne v. Heller refine remoteness and liability for words.

Step 3: how English law came to India

India has no code of torts. English law reached India in stages.

• The Charter of 1726 set up Mayor's Courts in the three presidency towns. They applied English law.
• Later Charters, Regulations and Acts told courts to decide cases not covered by a statute or custom by "justice, equity and good conscience".
• Courts read that phrase to mean English rules that suit Indian society and conditions. The application of English law was therefore selective.
• Sir Frederick Pollock drafted a Civil Wrongs Bill for India in 1886. It was not enacted.

Step 4: India after 1950

After the Constitution, Indian courts grew more willing to depart from English law.

• State liability. State of Rajasthan v. Vidyawati (1962) held the State liable for a driver's negligence. Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh (1965) held the State not liable for the loss of seized gold, because police seizure is a sovereign power.
• Absolute liability. In M.C. Mehta v. Union of India (Oleum Gas Leak Case) (1987), the Supreme Court did not follow Rylands v. Fletcher. It created a stricter rule of absolute liability for hazardous industries.
• Public law compensation. Rudul Sah v. State of Bihar (1983), Bhim Singh v. State of Jammu & Kashmir (1985) and Nilabati Behera v. State of Orissa (1993) awarded money for violation of fundamental rights under Articles 32 and 226.
• Doctors and consumers. Indian Medical Association v. V.P. Shantha (1995) brought medical service within consumer law.
• Statutes. The Fatal Accidents Act, 1855, the Motor Vehicles Act, 1988, the Consumer Protection Act, 2019 and the Information Technology Act, 2000 add rules to the common law.

Don't confuse: England and India compared

Students often write that India simply copied England. The table shows where the paths differ.

Point	England	India
Starting point	Royal writs of trespass and case	English common law brought by colonial courts
Turning point	Judicature Acts, 1873 to 1875	The Constitution and the Supreme Court after 1950
Guiding standard	Precedent, case by case	Justice, equity and good conscience; fitness to Indian conditions
Hazardous activities	Rylands v. Fletcher with exceptions	Absolute liability without exceptions (M.C. Mehta)
Codification	Mostly judge-made; some statutes	No general code; special statutes for motor accidents and consumers

Common mistakes

• Writing that India has a Law of Torts Act. India has no general tort code.
• Saying English law applies in India as it stands. Courts apply it only where it suits Indian conditions.
• Mixing up trespass (direct harm) with trespass on the case (indirect harm).
• Forgetting the Judicature Acts, which ended the forms of action.
• Omitting the Indian additions: absolute liability, public law compensation and special statutes.

Apply it

Leading case laws

• Ashby v. White (1703)

  Facts. A returning officer refused a qualified voter's vote. The jury gave £5 damages.

  Principle. The House of Lords held that a violation of a legal right is actionable.

  Why it matters. An early case that treated the right and the remedy together.

• Rylands v. Fletcher (1868)

  Facts. A reservoir burst and flooded a neighbour's mine.

  Principle. A person who keeps a dangerous thing on his land must keep it in at his own risk.

  Why it matters. It introduced strict liability after the writ system ended.

• Donoghue v. Stevenson (1932)

  Facts. A snail was found in a bottle of ginger beer. The drinker had no contract with the manufacturer.

  Principle. By 3 to 2, the House of Lords held that a manufacturer owes a duty of care to the consumer. Lord Atkin stated the neighbour principle.

  Why it matters. It is the foundation of modern negligence.

• M.C. Mehta v. Union of India (Oleum Gas Leak Case) (1987)

  Facts. Oleum gas leaked from a factory in Delhi.

  Principle. The Supreme Court created the rule of absolute liability for hazardous industries.

  Why it matters. It shows Indian courts building their own tort doctrine.

• Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh (1965)

  Facts. Police seized a bullion dealer's gold. A head constable stole it and fled to Pakistan.

  Principle. The Supreme Court held that the State was not liable, because seizure was a sovereign power.

  Why it matters. It shows the colonial doctrine of sovereign immunity carried into India. Later cases confined it.

• Nilabati Behera v. State of Orissa (1993)

  Facts. A young man died in police custody.

  Principle. The Supreme Court awarded compensation under Articles 32 and 226 as a public law remedy. Sovereign immunity does not apply.

  Why it matters. It shows compensation for rights violations outside the law of torts.

How to write this answer in the exam

Key points to remember

• England: writ of trespass (direct harm) and trespass on the case (indirect harm).
• Judicature Acts, 1873 to 1875, ended the forms of action and merged law and equity courts.
• Donoghue v. Stevenson (1932) is the foundation of the modern law of negligence.
• India: Charter of 1726 and the standard of "justice, equity and good conscience".
• English rules apply in India only where they suit Indian conditions.
• India's own additions: absolute liability (M.C. Mehta), public law compensation, special statutes.
• Pollock's Civil Wrongs Bill of 1886 was never enacted.

Quick self-test

Related topics

• Nature of Law of Torts
• Liability of the State for Torts – Defense of Sovereign Immunity
• Rule of Strict Liability (Rylands v. Fletcher)
• Rule of Absolute Liability (M.C. Mehta v. Union of India)