1. Meaning and Definition of Tort #
The term “Tort” is derived from the Latin word tortum, meaning “twisted” or “crooked” — something not straight or lawful.
In law, a tort means a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively a breach of contract, breach of trust, or breach of other merely equitable obligation.
Definition by Salmond: #
“A 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 merely equitable obligation.”
Definition by Winfield: #
“Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.”
Essentials of a Tort:
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Wrongful Act or Omission – A breach of a legal duty.
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Legal Damage (Injury) – Violation of a legal right.
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Legal Remedy – Action for unliquidated damages.
2. Tort or Torts – Competing Theories #
Winfield’s Theory (Law of Tort): #
According to Winfield, the law of tort is based on a general principle that all wrongful acts which cause harm to others are actionable, unless justified.
So, it is the law of tort (singular) — meaning, if a person’s act causes harm without lawful justification, he can be held liable even if no specific tort is named.
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This view allows new torts to evolve with changing society.
Salmond’s Theory (Law of Torts): #
Salmond opposed Winfield and said there is no general principle of liability.
According to him, liability arises only when the act falls under a recognized category of wrongs such as negligence, defamation, nuisance, etc.
Hence, it is a law of torts (plural) — a collection of pigeonholes of specific wrongs.
3. Pigeon-Hole Theory #
This theory was propounded by Salmond.
He compared the law of torts to a pigeon-hole cabinet, where each pigeon-hole represents a specific tort (like negligence, trespass, defamation).
If a wrongful act does not fit into one of these pigeon-holes, there is no liability, even if the act appears morally wrong.
Criticism:
Winfield argued that such rigidity prevents the law from developing and adapting to new wrongs. Courts have gradually moved towards the Winfield view in modern times.
4. Evolution and Development of Law of Torts #
(a) Origin in Common Law: #
The law of torts developed in England through judicial precedents rather than legislation.
Initially, only a few specific actions (called forms of action) were recognized — like trespass, detinue, and trover.
Later, as society evolved, courts recognized more duties and liabilities, leading to the modern concept of torts.
(b) Development through Case Law: #
The law evolved from the rigid “forms of action” system to a more flexible duty-based system.
Case 1 – Ashby v. White (1703) 2 Ld. Raym 938 #
Facts: Plaintiff was wrongfully prevented from voting by a returning officer though he was qualified.
Issue: Whether a person can claim damages for violation of a legal right even without actual loss.
Rule: Violation of a legal right itself is actionable (injuria sine damno).
Application: Defendant’s act infringed a legal right though no loss occurred.
Conclusion: Defendant held liable. → Foundation of legal injury principle.
Case 2 – Donoghue v. Stevenson (1932) AC 562 (House of Lords) #
Facts: Mrs. Donoghue drank ginger beer containing a decomposed snail and fell ill.
Issue: Whether the manufacturer owed a duty of care to the consumer.
Rule: Manufacturer owes a duty to take reasonable care to avoid acts likely to injure persons foreseeably affected by their acts.
Application: Manufacturer failed in this duty.
Conclusion: Landmark case establishing modern law of negligence and “neighbour principle” by Lord Atkin.
Case 3 – Rylands v. Fletcher (1868) LR 3 HL 330 #
Facts: Defendant’s reservoir burst, flooding plaintiff’s mine.
Issue: Whether a person keeping hazardous things is liable for their escape.
Rule: Person who brings and keeps dangerous things is strictly liable if they escape and cause harm.
Application: Defendant held liable even without negligence.
Conclusion: Foundation of strict liability in tort law.
5. Common Law Developments and Indian Context #
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Indian law of torts is largely judge-made, based on English common law, but adapted to Indian social conditions.
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Important judicial contributions in India:
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M.C. Mehta v. Union of India (Oleum Gas Leak Case, 1987): Introduced absolute liability for hazardous industries, expanding Rylands v. Fletcher.
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Jay Laxmi Salt Works v. State of Gujarat (1994): Reaffirmed that tort law in India must evolve with justice, equity, and good conscience.
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6. Conclusion #
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The Law of Torts is a dynamic branch of civil law that protects individual interests and enforces duties through compensation.
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The debate of Tort vs. Torts shows its flexible and evolutionary nature.
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Modern trends favour Winfield’s view — recognizing law of tort as a growing system of principles rather than a closed catalogue of wrongs.
