Nature of Law of Torts

In one minute

The law of torts decides when one person must pay another for a civil wrong. The duty is fixed by law, not by a promise. The usual remedy is money whose amount the court decides.

Most of this law is judge-made. It grows as new harms appear, from a leaking gas plant to an online insult. In exams, expect questions on its features, its objects and the debate on "Law of Tort" versus "Law of Torts".

Exam focus

Frequency: Rarely asked
Usually asked as: Long answer (10 to 15 marks)

Legal provision

No single Tort Act. India has no code of torts. The subject rests mainly on English common law as adapted by Indian courts, with statutes added on particular points.
Section 2(m), Limitation Act, 1963: "tort" is a civil wrong that is not exclusively a breach of contract or a breach of trust. This is the only general statutory description.
Statutes on special areas: the Motor Vehicles Act, 1988, the Consumer Protection Act, 2019 and the Information Technology Act, 2000 each add rules to the common law.
The Constitution: Articles 21, 32 and 226 let the Supreme Court and High Courts award compensation for violation of fundamental rights. This is a public law remedy and is separate from a tort claim.

Meaning and definition

A tort is a civil wrong. The word comes from the Latin tortum, meaning twisted or crooked. In law it means conduct that wrongs another person and for which the law gives a private claim for compensation.

The person who commits the wrong is the tortfeasor. The person wronged sues in a civil court. The state does not prosecute, and no punishment follows. The aim is to repair the harm.

The law of torts is the body of rules that says which wrongs carry this liability and how much the wrongdoer must pay. Definitions by Salmond, Winfield and Fraser are explained in the note on the definition of tort.

Where the law of torts sits among wrongsHow to read this: start at the top box and follow the lines down. The green box is the subject of this note.

Wrongs recognised by law
- CrimesWrongs against society. The state prosecutes and the court punishes.
- Civil wrongsWrongs against a private person. The injured person sues.
  - TortsA duty fixed by law, owed to people in general. Remedy: unliquidated damages.
  - Breach of contractA duty the parties chose to undertake. Owed to the other party.
  - Breach of trustA duty of a trustee to the beneficiary. Mainly an equitable wrong.

Detailed explanation

Step 1: the main features of a tort

A civil wrong. The injured person starts the case and can settle it. A crime is different, because the state controls the prosecution.
A duty fixed by law. The duty exists whether or not the parties agreed to anything. You must not drive carelessly, defame, or trespass, even toward a stranger.
A duty owed to persons in general. It is a right in rem (a right good against everyone). The wrongdoer need not have any prior link with the victim.
The remedy is unliquidated damages. This means compensation whose amount is not fixed beforehand. The court measures it by the harm. Injunctions and other remedies can follow where damages are not enough.
Mostly judge-made and uncodified. Courts have built the rules case by case, and they keep extending them.

Example. Ravi is walking on a Hyderabad footpath when a delivery rider on the wrong side hits him and breaks his arm. Ravi and the rider had no agreement. The law itself imposed the duty to ride with care. Ravi sues in a civil court for damages. That is a tort claim.

Step 2: the objects of the law of torts

Compensation. To put the injured person, as far as money can, back in the position before the wrong.
Deterrence. The risk of paying makes people take more care.
Protection of rights. The maxim ubi jus ibi remedium says that where there is a right there is a remedy. A right the law cannot enforce means little.
Fair division of loss. The law decides who should bear a loss, the victim or the person who caused it or profited from the risky activity.
Peace. A private claim in court takes the place of revenge and self-help.

Step 3: the scope of the subject

Tort law covers wide ground. It protects the body (assault, battery, false imprisonment) and reputation (defamation). It protects land (trespass, nuisance) and goods (conversion, detinue). It protects business interests (passing off, conspiracy), family relations, consumers and road users.

The field is still growing. Courts have added nervous shock, negligent misstatement, liability for hazardous industries and wrongs committed online. Statutes now cover motor accidents and consumer disputes.

Example. A factory in Visakhapatnam leaks toxic gas and sickens nearby residents. The residents can sue in nuisance and negligence. The Supreme Court can also apply the rule of absolute liability from M.C. Mehta v. Union of India. One event can reach several parts of the subject.

Step 4: "Law of Tort" or "Law of Torts"?

Two views explain the nature of the subject.

Salmond's pigeon-hole theory. There is a fixed list of named torts, such as assault, negligence and defamation. If a wrong does not fit one pigeon-hole, there is no liability. On this view the subject is the "Law of Torts".
Winfield's general principle (wider) theory. Any harm done without lawful justification is a tort. New wrongs can be recognised when justice needs it. On this view it is the "Law of Tort".

In practice the courts have favoured the wider view. The pigeon-hole list still guides them, but they have added new heads of liability. Donoghue v. Stevenson, Rylands v. Fletcher and M.C. Mehta v. Union of India are examples. The view that suits most students is that the law has a core of general principles and also a list of settled torts.

Step 5: the state's liability and public law compensation

When the state or its officers cause harm, a claim in tort is still open, but sovereign immunity can stand in the way. The Supreme Court has also awarded compensation for violation of fundamental rights under Articles 32 and 226. In Rudul Sah v. State of Bihar and Nilabati Behera v. State of Orissa, the Court did this without relying on tort law. This remedy comes from the Constitution, so it is not a tort remedy. The details are covered in the note on liability of the State.

Don't confuse: right in rem and right in personam

A tort protects a right in rem. A contract creates a right in personam. This single difference explains why a stranger can commit a tort but only a party can breach a contract.

Point	Right in rem (tort)	Right in personam (contract)
Good against	Everyone in general	A particular person or persons
Source of duty	Fixed by law	Created by the parties' agreement
Remedy	Unliquidated damages, and injunction in some cases	Damages, and specific performance or injunction in some cases
Example	Your right not to be assaulted or defamed	Your right to be paid by the buyer who agreed to buy your scooter

Inside tort. A passer-by defames Meena in a social media post. No agreement exists between them. The duty not to defame is owed to everyone. Meena sues in tort.

Just outside tort. Kiran agrees to buy Meena's scooter for Rs 40,000 and then refuses to pay. Only Kiran owes this duty, and only because he promised. Meena sues for breach of contract.

Common mistakes

Saying a tort needs a contract or an intention to harm. Many torts, such as negligence, need neither.
Treating tort and crime as the same. One act can be both, but the aim, the party who sues and the outcome differ.
Writing that the law of torts is a fixed list. Courts keep adding to it.
Mixing a constitutional compensation order with a tort award. Public law compensation under Article 32 is a separate remedy.

Apply it

Problem

A drone operator hovers over Sunita's terrace every evening and films her family. The drone never touches her house and causes no damage. Sunita wants to sue but cannot find a case on drones. Can the court give her relief?

Issue. Must a wrong fit an existing named tort before it can be remedied?

Rule. On the pigeon-hole theory a claim fails unless it fits a settled tort. On the wider theory, an unjustified interference with a legal right is enough. Courts have favoured the wider view and extended the law where justice needs it.

Application. The conduct interferes with Sunita's enjoyment of her home and her privacy, and nothing justifies it. A court can treat it as nuisance or as an invasion on a protected interest. The lack of a drone case does not bar relief.

Conclusion. Sunita can sue. The court can award damages and an injunction to stop the filming.

Leading case laws

Ashby v. White (1703)
Facts. A constable refused the vote of a qualified voter of Aylesbury. The jury gave him £5 damages.

Principle. A person whose legal right is violated has a remedy at law, even if the loss is hard to measure.

Why it matters. It supports the maxim ubi jus ibi remedium and shows that tort law protects rights, not only losses.
Donoghue v. Stevenson (1932)
Facts. A decomposed snail was found in a ginger-beer bottle bought by a friend of the drinker. She 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 shows tort law growing by judicial decision to meet new facts.
Rylands v. Fletcher (1868)
Facts. A mill owner's reservoir burst through old coal workings and flooded a neighbour's mine.

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

Why it matters. Courts created a new rule of liability instead of waiting for a statute.
M.C. Mehta v. Union of India (Oleum Gas Leak Case) (1987)
Facts. Oleum gas leaked from a Delhi factory and killed a person nearby.

Principle. The Supreme Court built a rule of absolute liability for hazardous industries, wider than Rylands v. Fletcher.

Why it matters. It shows Indian courts shaping tort law to Indian conditions.
Rudul Sah v. State of Bihar (1983)
Facts. Rudul Sah stayed in jail for fourteen years after he was acquitted.

Principle. The Supreme Court awarded him compensation in a petition under Article 32.

Why it matters. It marks the public law remedy for violation of fundamental rights, which sits beside tort claims.

How to write this answer in the exam

5-mark answer

State that a tort is a civil wrong (section 2(m), Limitation Act, 1963).
List the features: duty fixed by law, owed to persons in general, remedy of unliquidated damages.
Name the objects: compensation, deterrence, protection of rights.
Close with the one-line contrast with crime and contract.

10-mark answer

Meaning of tort and the origin of the word.
Features, with one example.
Objects of tort law, with the maxim ubi jus ibi remedium.
Scope: person, reputation, property, business, consumers, motor accidents.
Law of Tort or Law of Torts: Winfield and Salmond, with the courts' wider approach.
Cases: Ashby v. White, Donoghue v. Stevenson, M.C. Mehta v. Union of India.
Conclusion: public law compensation exists beside tort claims.

Key points to remember

A tort is a civil wrong that is not only a breach of contract or trust (section 2(m), Limitation Act, 1963).
The duty is fixed by law and owed to people in general, so the right is a right in rem.
The usual remedy is unliquidated damages.
Objects: compensation, deterrence, protection of rights, fair division of loss.
Salmond: fixed list of torts. Winfield: general principle. Courts lean to the wider view.
Compensation under Articles 32 and 226 is a public law remedy, not a tort award.

Quick self-test

1. What does section 2(m) of the Limitation Act, 1963 say a tort is?

A civil wrong that is not exclusively a breach of contract or a breach of trust.

2. Why can a stranger commit a tort but not breach a contract?

A tort breaks a duty fixed by law and owed to people in general. A contract duty exists only between the parties who made it.

3. What is the difference between the pigeon-hole theory and the general principle theory?

Salmond's pigeon-hole theory limits liability to named torts. Winfield's theory makes any unjustified harm a tort, so new torts can arise.