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STUDY MATERIAL FOR INTERNAL

CIRCULATION

COURSE & SEMESTER: 5 YEAR B.A., LLB. II SEMESTER

SUBJECT: LAW OF TORTS

Prepared By:
Ms. Sahana Florence
Asst. Prof.
BMSCL
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LAW OF TORTS

CORSE CONTENT:
UNIT-I
Evolution of law of torts - Nature and scope of law of torts - Meaning; Torts distinguished from
Contract and Crime - development of Ubi jus ibi Remedium - Mental elements; Intention,
Motive, Malice in Law and in Fact.
UNIT-II
General Defences, Vicarious Liability.
UNIT-III
Negligence; Nuisance; Absolute and Strict Liability. Legal Remedies- Awards- Remoteness of
Damages.
UNIT-IV
Tort against person: Tort affecting body- Assault, Battery, Mayhem and False Imprisonment;
Torts affecting Reputation- Libel and Slander, Tort affecting freedom- Malicious Prosecution,
Malicious Civil Action and Abuse of Legal Process; Tort affecting domestic and other rights-
Material Rights, Parental Rights, Right to Service, Contractual Rights, Intimidation and
Conspiracy; Tort against Property.
UNIT-V
Salient Features of Consumer Protection Act, 2019: Preliminary; Consumer Protection
Councils; Central Consumer Protection Authority; Consumer Disputes Redressal Commission;
Mediation; Product Liability; Offences and Penalties.
Salient Features of MV Act, 1988, Liability without fault in certain cases, Insurance of Motor
Vehicles against third party risks, Claims Tribunal, offences, Penalties and Procedure.
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UNIT-I
Evolution of law of torts - Nature and scope of law of torts - Meaning; Torts distinguished from
Contract and Crime - development of Ubi jus ibi Remedium - Mental elements; Intention,
Motive, Malice in Law and in Fact.

Previous Questions:
1. Trace the development of law of torts in England and India.
2. Define Tort and explain the essential elements of Tort.
3. “All torts are civil wrongs, but all civil wrongs are not torts”. Justify the statement with
leading cases.
4. Explain “injuria sine damno” and “damnum sine injuria” with illustrations / decided cases.
OR “Every injury imports damage but every damage is not injury”. Discuss the statement in
the light of decided cases.
5. What is ‘Tortious liability’? Distinguish between intention, motive and malice.
6. Explain the relevance of mental elements in ‘Tort’.
7. Define ‘Tort’. Distinguish torts from contractual and criminal liability. OR Define and
distinguish between Tort and Crime, Tort and Contract.
8. Explain briefly the exceptions to the general rule that all persons are liable to be sued.
9. SHORT NOTES:
a) Evolution of law of torts in India
b) UBI JUS IBI REMEDIUM
c) Injuria sine damnum
d) Malice
e) Malice in Law and Fact
f) Distinguish between Intention and Motive
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1. EVOLUTION OF LAW OF TORTS

1.1.Introduction:
Ever Since the dawn of human civilisation, maintenance of peace in society has
been a baffling problem. As Emile Durkheim rightly stated that even a society which is
composed of persons with angelic qualities would not be free from violations of the
norms of that society because different groups have variable and often incompatible
interest in the society which give rise to conflicts eventually resulting in wrongful acts,
be it a crime or a civil ‘wrong’.
ln common sense the law of Torts is the branch of law controlling the behaviour
of the people in society. It is a growing branch of law and its 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 for providing
compensation for victims or their dependants. This branch of law has attained great
importance in England and other western countries, though not to the same extent in
India. Truly speaking entire law of Torts is founded and structured on morality that no
one has a right to injure or harm anybody intentionally or even innocently.

1.2.Origin and Development of Law of Torts in England

The term ‘Tort’ is the French equivalent of the English word ‘wrong’ and
Roman term ‘delict’. Tort is derived from the Latin term ‘tortum’ meaning ‘twisted’ or
a ‘crooked’ act. i.e., a deviation from straight or right conduct. In this generic sense it
was introduced into the terminology of the English Law by the French-speaking
lawyers and judges of the Courts of Normandy and Angevin Kings of England. But it
was an obscure term till the middle of the seventeenth century.
In early days, throughout the world, there was no division of law. in England
too, before the Norman Conquest (i.e., A.D. 1066), the English Law was primitive and
rudimentary. During that period distinction between crime and wrong (i.e., tort) was
not recognized. The laws were mainly concerned with the payment of pecuniary
compensation and private compensation of even serious crimes was allowed.
In primitive communities the idea of private vengeance and self-help dominated
rather than the idea of justice through any public tribunal. Before the emergence of the
State, law was enforced by individuals whose rights had been invaded, assisted by their
family and clan. Persons who suffered serious physical injuries, which nowadays will
certainly be classed as serious crimes, were usually compensated by payments in terms
of money to injured persons, individuals or their relatives. In cases where the injured
persons met with death, their relatives were compensated.
The early Common Law was concerned mainly with the remedies and not with
the rights. At that time procedure was considered more important than the right. Before
the passing of the Judicature Act, there were certain recognized forms of action for
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providing remedy for the wrongful conduct. A proceeding in the Common Law courts
was called an ‘action’. An action was commenced through a royal writ. These writs
were issued from a special department of Government known as officina brevium
(meaning writ shop). Success of an ‘action’ depend upon the availability of writs. Thus,
if no writ was available, action would fail even though it was otherwise justified. The
plaintiff has to choose the correct or appropriate writ and pay for it. If he purchased a
wrong writ or he could not fit his claim in any one of the recognized forms of action
his suit will be dismissed. The early Common Law has therefore been described as
“commentary on writs”. A reference of the Law therefore meant reference to action.
The rule was ubi remedium ibi jus, i.e., where there was no writ there was no right.
The forms of action then available fell into two categories- (i) the action of
trespass; and (ii) the action of trespass on the case.
The emphasis on procedural aspect of the availability of a remedy or a writ for
determining the success for a case continued for some 500 years. ultimately in 1852,
Common Law Procedure Act was passed and whereby the writs were abolished. Every
pleading was required to contain only a statement in a summary form of the relevant
facts on which the party pleading relied. Thus, we find the primacy of substance over
the procedure. Today the maxim is ‘ubi jus ibi remedium’ i.e., where there is right there
must be a remedy. The Common Law Courts adopted this principle and have begun to
give decisions for the public good in new situations where there were no statutory
provisions at that time.
In the course of time, common law courts allowed actions of trespass on case
for new kinds of wrongs such as defamation, nuisance, deceit, malicious prosecution,
conversion of goods etc. because remedies in respect of these injuries had become
necessary in view of the changes that were taking place in the society. Reference may
be made here to the famous case of Ashby v. White (1702) 2 Ld Raynm 938, herein the
Returning Officer in a Parliamentary election had maliciously prevented a voter from
exercising his statutory right of voting. The candidate for whom the plaintiff wanted to
cast his vote had nevertheless won. The defendants therefore argued that since the
plaintiff had not sustained any actual or pecuniary damage, action was not maintainable.
Moreover, there was to precedent for such an action. Holt, CJ. rejected the argument of
the defendants and held: “
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 vein thing to imagine a right without a remedy; for want of right and want of
remedy are reciprocal.” Thus, this case rendered a signal service for the development
of Law of Torts by establishing the principle, ubi jus ibi remedium. i.e., “where there
is a right there is a remedy.”
The recognition of the law of torts as a division of law in England may be said
to date from 1860 with the publication of Addison’s Law of Torts and Sir Frederich
Pollock’s Law of Torts (in 1886).
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Since 1934, Committees of judges and jurists selected by the Lord Chancellor
have from time to time examined different branches of the law and recommended
necessary reforms in them. These have, in many cases, been carried out by legislation.
The law of torts with a flexible set of rules which provide enough scope for
expansion to accommodate developing legal needs, conditions and new duty situations,
such as development of trade, industry, technology, speed of automobiles and even
increasing congestion of dwelling areas. Recently consumer protection became one
branch of the Law of Torts basing on the doctrine ‘caveat venditor’ after the judgment
in Donoghue v. Stevenson [(1932) AC 562].

1.3.Origin and Development of Law of Torts in India

• Law of Private Wrongs in Ancient India
During Vedic period, law was in the form of ‘Dharma’ which means justice and
indicate what is right in a given circumstance, moral, religious, pious or righteous
conduct, being helpful to living beings, giving charity or alms, duty law and usage or
custom having the force of law. As time passed, gradually, individual rights came to be
asserted as different from the family. To meet the requirement of a changing society,
laws and treaties, regulating the rights and liabilities of individuals came into the form
of ‘Sutras’ (aphorism) i.e., Srauta Sutras, Grihya Sutras and Dharma Sutras. The
Dharma Sutras deal with Civil and Criminal law. The important Dharma Sutras were
of Gautama, Bandhayana, Apastamba, Harita, Vasista, Vishnu etc.
The ancient Hindu Law recognised the institution of King or State which had
complete control over its subjects. The entire scheme of civil and criminal law has been
described by Manu under eighteen heads such as gifts, sales, partners, assault,
defamation, theft, robbery etc. The right to recover compensation was recognised in
three cases, namely, (1) damage caused to crops by trespass of cattle (2) bodily injuries,
and (3) damage caused to goods whether intentionally or otherwise. There was no scope
for private vengeance or retaliation in the ancient scheme of justice. However, non-
payment of debt or breach of contract which give rise to civil cause of action , were
regarded as crime punishable by the King or his delegate. The Digest prepared by
Viramitrodaya and Vyavahara Mayukha contain authoritative details on a variety of
topics relating to law of private wrongs (now known as torts) including injuries to
person and property, trespass, fraud, deceit, bailment, negligence, law of carriers,
measure of damages, defences etc. which form the subject matter of modern law of tort.
The ancient Hindu Law of torts, however differed from the present law of tort
in one distinct aspect. It recognised right to compensation only in cases where plaintiff
suffered monetary loss and not in other cases like assault, false imprisonment, insult,
adultery, defamation etc., which were regarded as punishable offences and did not give
rise to cause of action in torts.

• Law of Torts in Modern India

Under the Hindu Law and 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
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prominent place than compensation for wrongs. The law of torts as administered in India
in modern times is the English law as found suitable to Indian conditions and as modified
by the Acts of the Indian Legislature. Its origin is linked with the establishment of British
Courts in India.
During British rule, the law of torts in India was generally based on the English
Law of Torts. As regards the suits for damages for torts courts generally followed the
English Common law so far as it was consonant with equity, justice and good conscience.
A departure was made when any particular rule was found unreasonable or unsuitable to
Indian conditions. for example, rules requiring proof of special damage for an action for
slander and the doctrine of common employment prevailing in England were not followed.
So is also the case of rules like vicarious liability of State, maintenance, champerty etc.,
about which the position in India is different from the English Law.
However, the law of torts remains one of those few branches of law which have not
yet been codified as a whole in India, and is still based on the Common Law of England
which was introduced with the establishment of the British Courts in India. The law in
British India, as embodied in case-law, is therefore practically the same as in England
departing from the latter only where any particular rule has appeared unreasonable or
unsuitable to local conditions. Thus, the English rules of ‘merger of torts in felony’,
common employment, maintenance and champerty and the rule denying action for slander
when there is no proof of special damage have not been adopted in India because the Indian
Court has to act according to the principles of equity, justice and good conscience in the
absence of specific law or usage in any matter. As regards the suits for damages for torts,
courts generally followed the English Common law so far as it was consonant with equity,
justice and good conscience.
Even after independence Indian Courts have generally followed Law of Torts which
prevails in England. But while applying a rule they always keep in mind that the rules must
be reasonable and suitable to Indian conditions. Whenever the Indian Courts find that a
particular rule is unreasonable or unsuitable to Indian conditions, they do not hesitate to
make a departure or propound a different rule. A recent example of such rules is the rule or
principle of strict liability in respect of hazardous activities.
The recent past has witnessed a new dimension in Judicial Activism with the
intervention of the Supreme Court in Rudul Shah v. State of Bihar (1983) in which the State
was directed to pay Rs. 35,000/- and release the acquitted person, who was detained in
prison for 14 years. Similarly, the Court awarded exemplary damages in Sebastian M.
Hongray v. Union of India (1984); Bhimsingh vs. State of J & K (1986) and many other
cases. Further, the Supreme Court of India, while delivering its landmark decisions in PIL
(Public Interest Litigation) cases evolved:
i. the principle of “Absolute Liability” in 1987 in M. C. Mehta v. Union
of India (AIR1987 SC 1086) in preference to 1868 rule of Strict
Liability;
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ii. ii. the principle of “Public Trust Doctrine” in Kamalnath v. Union of

India (1997) 1 SCC 388;
iii. iii. the principle of “Sustainable Development”, (which envisages
harmony between environment and development), in Vellore Citizen’s
Welfare Forum v. Union of India and Others (AIR 1996 SC 2115) and
also formulated in many cases, the other principles of great importance
viz. Polluter Pays Principle, Precautionary Principle etc.
The position in India is uncertain due to lawlessness in many areas. Gajendra
Gadkar, the then C.J., Supreme Court in Kasturilal v. State of UP (1965) expressed
dissatisfaction over lawlessness in India to fix/determine liability of the Govt. for torts
committed by the servants (and recommended for the passing of appropriate
legislation). However, we witnessed recently, the activism in Indian Legislature with
the passing of “The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985” to
file a suit by the Union of India on behalf of the victims in the United States Dist. Court.
Further, the Indian Parliament, in pursuance of recommendations from the Supreme
Court and other authorities passed legislations for establishment of Environmental
Courts. Eg. The National Environment Tribunal Act, 1995.
The Law of Torts in India is based on judicial decisions. After independence
English decisions are not binding upon Indian Courts. They are only of persuasive value
but they have been generally followed. While most other branches of law have been
codified, the Law of Torts have been ignored as yet, there is no Code of this branch of
law in India. Some parts of the law of torts have, however, been codified by statutes
relating to particular branches of the law, and so far, the English laws relating to those
subjects are inapplicable e.g., (i) Specific Relief Act, 1963; (ii) Fatal Accidents Act,
1855; (iii) Carriers Act, 1865; (iv) Sale of Goods Act, 1930; (v) Easement Act, 1882;
(vi) Consumer Protection Act 1986; (vii) Workmen’s Compensation Act, 1923; (viii)
Employer’s Liability Act, 1938; (ix) Motor Vehicles Act, 1939.

2. CONCEPTION OF LAW OF TORTS

2.1.Introduction
Numerous attempts have been made to define “a tort” or “tortious liability,” with
varying degrees of lack of success. Winfield’s definition is important one but that was
primarily a formal one designed to distinguish tortious liability from other traditional
legal categories such as contract or trust. Such distinctions do not often arise in a
practical form but an attempt at formal definition is not without value whether or not
one accepts the continuing usefulness of the traditional legal classifications. Having
given a very broad description of the purposes of the law of tort we can then return to
the problem of formal definition and, finally, look at what is currently the most
controversial matter in relation to the practical operation of the law-the relationship of
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parts of the tort system with certain other legal and social institutions pursuing similar
ends.

2.2.Function and Purpose of Law of Torts

The definition of tort is not material, what matters more is the function and purpose
of the law of torts. The aims of law of tort have changed from time to time throughout
the history and some of the prominent among them have been appeasement, justice,
punishment deterrence, compensation and loss spreading. But none of them has offered
a complete justification for the law. Each of these in its historical setting has revealed
something about the economic and philosophical trends of the day and at different
stages of the development of the law of tort one may have been more prominent than
others. Implicit throughout it is also the idea of compensating the victim. For this is a
major and indisputable aim of the law of tort.
As regards purpose and function of Torts, Salmond and Heuston on the Law of
Torts have pointed out the following three points-
(1) The law of torts is dynamic and is capable or changing in accordance with the
needs of a changing society.
(2) It is impossible to find a general formula or criterion which can explain all cases
in which liability has been imposed in past and which may furnish a guide for deciding
doubtful cases in future.
(3) Besides interest of the plaintiff and the nature of the conduct of the defendant,
other factor such as (i) historical development, (ii) vengeance, (iii) deterrence, (iv)
ability to bear the loss; and (v) economic and social background of the case may also
be relevant.
The main object of the law of torts is to afford compensation to a person whose
legally protected interest i.e., right has been violated by another person. It is served as
a means of shifting the loss, caused to a person by wrongful act of another person, from
the injured person to the person causing the injury.
The purpose of the law of tort is not so much to punish the wrongdoers, but to
adjust the losses in modern living and to afford compensation for injuries sustained by
one person as a result of the conduct of another.
Thus the whole law of tort revolves on ‘liability’ and ‘compensation’ but there is
no fixed or general formula or criterion to determine them. The criterion to determine
them changes according to needs of the society.

2.3.Meaning and Definition of Tort or Tortious Liability

2.3.1. Origin of the term ‘tort’
The term ‘tort’ is French in origin which is a synonym to ‘wrong’ in English.
The word ‘tort’ originated from the Latin word ‘tortum’ which means ‘to twist’ i.e.,
not straight and correct. It implies conduct which is twisted or tortious. The Roman
word ‘delict’ depicts same meaning as tort. ‘Tort’ may be said to mean a conduct
which is not straight or lawful, but is twisted, crooked or unlawful.
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The Law of Torts consists of various ‘torts or wrongful acts whereby the
wrongdoer violates some legal right vested in another person. The law imposes a
duty to respect the legal rights vested in the members of the society and the person
making a breach of that duty is said to have done the wrongful act. As ‘crime’ is a
wrongful act, which results from the breach of a duty recognized by criminal law,
a ‘breach of contract’ is 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 not 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 other results in the tort of deceit.
A person, who commits a tort or wrong is called a ‘tort-feasor’ or ‘wrong-doer’.
His wrongful act is called a ‘tortious act’.
The Law of Torts signifies violation of great variety of rights and duties and so
it is very difficult to give a concise and complete definition of it. Another difficulty
is that the Law of Torts is not a codified law. It is based on common law of England
which is unwritten and uncodified. Secondly, it is an ever-growing law and the
courts are expanding its horizon continuously by recognising new torts. In view of
these reasons, it is not possible to give a perfect and scientific definition of the Law
of Torts which would include all its aspects.

2.3.2. Meaning of Tort

To provide a workable definition in general terms, a tort may be defined as a
civil wrong independent of contract for which the appropriate remedy is an action
for unliquidated damages. A civil injury for which an action for damages will not
lie is not a tort, e.g. public nuisance, for which no action for damages will lie by a
member of the public. The person committing a tort or wrong is called a tort-feasor
or wrong doer, and his misdoing is a tortious act.
The term ‘tort’ literally means “a wrongful act committed by a person, causing
injury or damage to another, thereby the injured institutes (files) an action in Civil
Court for a remedy, viz., unliquidated damages or injunction or restitution of
property or other available relief.
The expression “unliquidated damages” means “the amount of damages to be
fixed or determined by the Court”. The expression ‘wrong’ is of two kinds, namely
: (i) Public wrong ; and (ii) Private wrong. All acts, which are identified to be
punishable under the Indian Penal Code, 1860 are called offences (Sec. 40, I.P.C.)
or crimes or public wrongs and are tried in Criminal Courts. The rest are called
private wrongs and are tried in Civil Courts. Therefore, tort is a civil wrong and is
tried in Civil Court. Further, wrong takes place in two ways viz. (i) Commission of
an act. Eg. Negligent operation/ surgery by a doctor, causing the death of a patient
; and (ii) Omission of an act. Eg. Omission or failure to give medicine by a nurse,
causing the death of patient.
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2.3.3. Definitions of Tort

It is perhaps impossible to give an exact definition for ‘tort’ or ‘the law of tort’
or ‘tortious liability’, and, as a corollary it is certainly impossible to give a definition
which will satisfy every theorist who has taken any interest in the topic. Winfield
and Jolowicz in his book on ‘tort’ remark that “A satisfactory material definition of
tort is almost certainly an impossibility.” They further said “no definition, however
good, can satisfy the primary need of the opening chapter of a book of this kind
which must tell the definition and must be content to sacrifice accuracy and
completeness for the sake of simplicity.”
A scientific definition of a tort has not yet been formulated. It is not possible to
give any precise definition of tort because of the following reasons:
• the law of torts comprises a large number of wrongs of diverse species
whose historical development has been rather fragmentary and piecemeal. The
great variety and complexity of the circumstances under which tortious liability
arises still offer a serious obstacle to any comprehensive definition of a tort.
• Law of torts is based on decided cases. While deciding a case, judges feel
their primary duty is to adjudicate the case in hand rather than to lay down wider
rules and hence they seldom give any definition of legal terms.
• The law of tort is still growing and has not yet reached the saturation point.
If a thing is growing no final definition can be given.
The law is like an apparel, which alters with the time and the alteration is
dictated not only by changing modes of thought but also by growing complexity of
the organism that the apparel has to fit. Nobody can deny that the Courts have
created new torts gradually and sanctioned almost imperceptible extinction of old
torts.
Though it is very difficult to give a concise and complete definition of tort, some
definitions are given below.

➢ Dr. Winfield:
According to Dr. Winfield, “Tortious liability arises from breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach is
redressible by an action for unliquidated damages.”
Thus according to Dr. Winfield a tort has the following essentials:
1. Tortious liability arises from breach of duty fixed by law;
2. This duty is towards persons generally;
3. Breach of duty is redressable by an action for unliquidated damages.
The above definition was subject to criticism on different grounds. However, it
was proved to be workable in majority of cases. Many jurists consider this definition
better.

➢ Sir John Salmond

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According to 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.”
Thus according to Salmond’s definition, a tort consists of the following essentials:
1) Tort is a civil wrong;
2) This wrong is different from breach of contract or breach of trust or other equitable
obligations;
3) This tort is redressable by an action for unliquidated damages.

➢ Fraser

According to Fraser “A tort is an infringement of right of a private individual giving a right of

compensation at the suit of the injured party.”

➢ Frederick Pollock

According to Frederick Pollock “tort is an act or omission resulting in breach of duty to an

individual for which he is entitled to get reparation from the wrong doer, and such reparation
is unliquidated.”

➢ Indian Limitation Act, 1963

Tort has been defined in Section 2 (m) of the Indian Limitation Act, 1963 as “a civil wrong
which is not exclusively the breach of a contract or the breach of a trust.”
By examining any one of the above definitions we may be able to understand the real
nature of the Law of Torts. As has been said above, none of the definitions contain all the
aspects of the law of torts. However, of all the definitions, definition given by Dr. Winfield, a
well-known authority on law of torts seems to be more acceptable and is considered better by
majority of jurists.

2.4. Nature and Scope of Law of Torts

2.4.1. Nature of Law of Torts
Basically, a tort is a civil wrong. A civil wrong is a wrong which gives rise to civil
proceedings. Moreover, as noted above, tort is a civil wrong which is not exclusively the breach
of contract or the breach of a trust or other merely equitable obligation. One of the main aims
of the law of torts is to compensate the person who is injured or wronged. The remedy for tort
is generally an action for unliquidated damages. In most cases, the plaintiff’s claim is based on
the argument that defendant committed some wrong or infringement of his legal right to cause
harm to him. Thus, the law of torts determines when one person must pay another compensation
for harm wrongfully caused. At any rate that is its primary function: it also helps to decide what
conduct may be stopped by court order, and quite importantly, serves as a forum for the
vindication of individual rights. As pointed out earlier, liability in tort arises out of a breach of
duty.
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The nature of law of torts may be better understood by distinguishing it from other branches
of law, for example, crime, breach of contract etc.
(i) Differences Between Tort and Crime
Blackstone defines crime as “an act committed or omitted in violation of a
public law either forbidding or commanding it”. It is an offence against the public.
Example: Theft, Murder etc. In a way there is no distinction between crime and
tort, in as much as a tort harms an individual whereas a crime is supposed to harm
a society. But then, a society is made of individuals and harm to an individual is
ultimately harm to society. The act may be tort when looked upon from the
standpoint of an individual, and also a crime when looked upon from the standpoint
of the society in general e.g., assault, libel and malicious injury to property are the
wrongs of this kind.
It is true that same act may be both a crime and a tort. For instance, suppose that
at the railway station, I entrust my luggage to someone who offers to carry it for
reward and he runs off with it. He has committed the crime of cheating and also
civil wrongs, namely the tort of conversion and a breach of contract with me. The
result is that two sorts of legal proceedings can be taken against him – a prosecution
for cheating and a civil action for the tort and for the breach of contract. But, there
are certain points of distinction between a tort and a crime.
As per Holdsworth, only certain lines of distinction are to be found in the nature
of remedy given and the nature of the procedure to enforce the remedy. If the
remedy given is compensation, damages, or a penalty enforced by a civil action,
the wrong so redressed is a civil wrong. If the remedy given is punishment of the
accused which is enforced by a prosecution at the suit of the crown, the wrong, so
redressed is a crime. Both tort and crime resemble each other in two respects,
namely, (i) tort and crime are violation of right in rem; and (ii) they are fixed by
law irrespective of the consent of the parties, unlike contract. However, a tort
differs from a crime both in principle and procedure as given below
According to Blackstone, the distinction of public wrongs from private, of
crime and misdemeanours from civil injuries, seems practically to consist in this :
That private wrongs or civil injuries are an infringement or violative of the civil
rights which belong to individuals, considered merely as individuals: public
wrongs, or crimes and misdemeanours, are a breach and violation of the public
rights and duties due to the whole community, considered as a community in its
social aggregate capacity.

• Distinction between a tort and a crime

TORT CRIME
1. A tort is an infringement of the private 1. A Crime is a breach and violation of
or civil rights of an individual. the public rights and duties which affect
the whole community
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2. A tort causes injury or damage to an 2. A crime is an offence against the

individual or group of individuals.
3. A tort is a civil wrong. It gives rise to
civil proceedings
4. Tort arises out of liability independent
of any personal obligation under a
contract.
5. Generally the wrongs under the torts do
not involve any element of moral
turpitude. The wrong-doers of torts are
punished by way of damages for the
better social welfare and efficiency.
6. Most of the Law of torts is judge-made
law. It is not codified.
7. In tort the plaintiff is the injured party
and the civil action is brought by the
injured party himself.
8. The person who commits tort is called
‘tort feasor’ or ‘wrong doer’.
public at large or society as a whole.
3. A crime is a public wrong which
results in punishment.
4. Crime arises on account of statutory
enactments.
5. The offences defined under the
criminal law are notorious for moral
unscrupulousness. They are treated as
morally depraved, aggravated, heinous
and dangerous to the individuals and also
to the society
6. All the Crimes are defined and
punishments are prescribed and criminal
law is codified.
7. In a crime, the victim is an individual.
The Criminal proceedings against the
wrongdoer are instituted by the State.
8. The person who commits crime is
called accused (before guilt is proved)
and convict (after guilt is proved) or
criminal.

9. A tort is tried in Civil Court. 9. A crime is tried in Criminal Court.

10. In tort burden of proof lies on the 10. In criminal cases, burden of proof lies
injured/complainant. on the State. The injured becomes a
witness only.
11. While dealing with civil wrongs 11. Strict rules of procedure and
natural principles of justice, good principles are followed in fixing the
conscience, equity, etc. are followed in liability of the criminal
fixing the wrong-doer’s liability.
12. Mens rea (i.e., ill or bad intention) has 12. Generally an act shall not be
no place in tort. Thus, in tort intention of punished as a crime, unless there is mens
wrong-doer is secondary importance and rea (i.e., ill or bad intention) actually
in some cases no importance at all. present in the wrong-doer. Thus, in
crime, intention is of primary importance
13. In tort the wrong-doer has to 13. In crime the offender is punished by
compensate the aggrieved party; such the State in the interest of the society.
compensation may be nominal, ordinary Such punishment may be fine or
or exemplary according to the magnitude imprisonment.
of the tort.
 P a g e | 15

14. The nature of punishment is light, that 14. The nature of punishment is heavy
too in the form of awarding damages. and serious from death to fine as per the
severity of the offence
15. The purpose of awarding 15. The object of the criminal law is to
compensation to the injured party in a tort protect the community or society by
is to make good the loss suffered by him. preventing and deterring the offenders
from committing further offences.
16. Law permits the parties to settle the 16. Criminal law, generally, does not
dispute. In other words, the plaintiff can permit settlement of a case by
withdraw the suit filed by him. compromise between parties. However,
Sec.320 of the CrPC provides for an
exception to this rule
17. The payment made by the 17. Generally the amount collected by
wrongdoers as compensation goes to way of penalty and fine is not paid to the
injured party. victim, but that amount is credited into
State account.
18. Civil law (Law of Torts) is the latest 18. Criminal law is the oldest law.
subject.

(ii) Differences Between Tort and Contract

Section 2(h) of the Indian Contract Act, 1872 defines contract as “an agreement
enforceable by law”; In a contract, both parties have obligation. If one party fails to
fulfil the contractual obligation, it amounts to “Breach of Contract”. Then, the other
party files a suit in the Civil Court to enforce the agreement.
Salmond says, “A contract arises only out of the exercise of the autonomous
legislative authority entrusted by the law to private persons to declare and define the
nature of their mutual rights and obligations”.
The distinction between tort and contract was recognised in modern times. Till
sixteenth century the form of action for a breach of a simple contract was not provided
but its purpose was served by an action of trespass on the case. The growth of trade and
commerce which resulted in the increase of litigation in contracts made a special form
of action. It was this stage that the distinction between tort and contract emerged.
According to Professor Winfield, “At the present day, tort and contract are
distinguished from one another in that the duties in the former are primarily fixed by
the law, while in the latter they are fixed by persons themselves. Moreover, in tort duty
is towards persons generally, in contract it is towards specific persons or a specific
person.”
No civil wrong is a tort, if it is exclusively the breach of a contract. The Law of
Contracts is a separate department and the Law of Tort is another. The contractual
liability and the tortious liability are governed by different principles. In certain
circumstances, from an incidence both the contractual liability and tortious liability may
arise. For example, A is the car owner. B has taken A’s car on hire. Thus, contract arises
between A and B. From B, C has taken the car, and damaged it. There is no direct

relationship between A and C. It is true that apart from the contract between A and B,
C is liable to A. B made a breach of contract. C has put himself in such a situation that
he cannot breach the duty. There was omission to take care on part of C. It is a tort.
Following are the notable points of distinction between Tort and Breach of
Contract.
• Distinction between tort and a contract
TORT
In tort the duty is fixed by the law itself.
In tort the duty is towards every person
of the community or society.
A tort is committed against or without
consent.
A tort is a violation of a right in rem (i.e.,
of a right vested in some determinate
person, either personally or as a member
of the community, and available against
the world at large.
The law of torts is aimed at allocation or
prevention of losses.
A third party can sue for tort even though
there was no contract between the person
causing injury and the person injured.
In an action for tort, no privity needed or
is required to be proved.
In tort motive is often taken into account.
The remedy in tort is civil action for
unliquidated damages, restitution of
property, injunction etc.
In tort measure of damages is different in
different circumstances, which may be
nominal or exemplary.
In case of a tort, the suit is for
unliquidated damages.
P a g e | 16
CONTRACT
In contract the duty is fixed by the parties
themselves.
In contract the duty is towards specific
person or persons.
A contract is based on the consent of the
parties.
A breach of a contract is an infringement
of a right in personam (i.e., of a right
available only against some determinate
person or body, and in which the
community at large has no concern.
The law of contract aims to see that the
promises made under a contract are
performed.
A third party to a contract cannot sue for
breach of contract except in some
exceptional cases.
In a breach of contract privity between the
parties must be proved.
In breach of contract motive is not
relevant.
The remedy is civil action for specific
performance of the contract or liquidated
damages in alternative.
In breach of contract damages are
awarded in the form of compensation for
pecuniary loss actually suffered.
In a breach of contract, the measure for
damage s is determined by the stipulation
between the parties or is fixed by law. The
action is therefore, for liquidated
damages.
 P a g e | 17

In tort, a man is held liable for damages If there are special circumstances under
arising from special circumstances of which a contract was made, and they were
which he had no knowledge. wholly unknown to the party breaching
the contract, he is not liable for damages
due solely to those circumstances.
In tort exemplary damages can be given. In a breach of contract exemplary
(damages assessed in order to punish the damages are not awarded except in the
defendant for outrageous conduct.) case of a breach of contract to marry.
Law relating to tort has not been codified . It is a judge made law. Law relating to
contract has been codified.
In tort, a person injured may be entitled In breach of contract the party is entitled
for such damages which he has not only for actual damages.
actually suffered.

2.4.2. Scope of Law of Torts

The definition of ‘tort’ as expounded by different writers suggests that it is a body of law which
deals with the liability of persons against whom an action in tort would lie. The main
characteristics / Scope of torts may be stated as follows:
i) Tort is a Civil Wrong (injuria)
‘Wrong’ means ‘violation of a right or of law’. it is any damage or injury,
contrary to right. It is an act causing injury to the other side. ‘Civil wrong’ or ‘civil
injuries’ means infringement or privation of the private or civil rights belonging to
the individuals, considered as individuals. It is to be distinguished from a breach
and violation of a public right or duty which affects the whole community,
considered as a community, which is termed ‘crime’ or ‘misdemeanour’.
Tort belongs to the category of civil wrongs. The basic nature of civil wrong is
different from a criminal wrong. In the case of a civil wrong, the injured party, i.e.,
the plaintiff, institutes civil proceedings against the wrongdoer i.e., the defendant.
In such a case, the main remedy is damages. The plaintiff is compensated by the
defendant for the injury caused to him by the defendant. In the case of a criminal
wrong, on the other hand, the criminal proceedings against the accused are brought
by the State. Moreover, in the case of a criminal wrong, the individual, who is the
victim of the crime, i.e., the sufferer, is not compensated.

ii) Breach of Duty Primarily Fixed by Law

Being a member of society, a man is bound to observe certain rules made by the
society. The basis of majority of these rules is Dharma (generally in English
‘religion’) for example, to give food to a man who is starving, to save a man who is
drowning in a river, to help such persons is our social and religious duty. But we
are not bound by law to observe these duties. On the other hand, tortious liability
arises from breach of a duty fixed by law. In case of breach of such duties, the
 P a g e | 18

aggrieved party can initiate a legal proceeding against the wrongdoer in a court of
law. The court may award damages to the plaintiff.
A duty means that some person has to do something or abstain from doing
something in favour of another person.
The basic principle of tortious liability is that the duty from the very first must
be fixed by the law itself and not by an agreement of parties. Parties. therefore
cannot create tortious liability by contract and also it cannot be negatived by them.
For example. a person is under a legal duty not to trespass on other's land. This duty
has been primarily fixed by the law and has not been created through agreement
between persons. That is why, tort is quite distinct from contract and bailment where
the duty is fixed by the parties themselves i.e.. a duty of the person liable.
iii) Duty is Towards Persons Generally
The duty in tort is always general and it is an important constituent of tort. if the
duty is towards specific person(s), it cannot arise from tort. For example. we have
a duty not to defame others or not to trespass upon the land of others in general. In
some instances, it is hard to say who exactly are ‘persons generally’. Winfield
admitted that in some cases It was very difficult to ascertain who are ‘persons
generally’, but claimed that the element of generality was an important factor in the
definition and that it was sufficiently workable in majority of cases. In a nutshell,
duty is towards persons generally and not against some particular persons.

iv) Breach of Duty is Redressable by Action for Unliquidated Damages

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.
After the commission of the wrong, it is generally not possible to undo the harm which
has already been caused. The only thing which can be done in such a case is to see what
is the money equivalent to the harm and the sum so arrived at is asked to be paid by the
defendant to the plaintiff. Damages are the remedy for tort. Damages in the case of tort
are unliquidated and not liquidated.
Although action for unliquidated damages “is by no means the only remedy for
a tort”, it is the ‘one pretty sure test of tortious liability’ as per Winfield. But it should
be noted that there are other remedies besides unliquidated damages which have not
been included in the definition ‘of Winfield namely (i) self-help; (ii) injunction and (iii)
actions for specific restitution of property.

“All Torts are Civil wrongs, but all Civil wrongs are not Torts”
Introduction

The statement which suggests that “Tort is a civil injury but all civil injuries are
not a tort” could confuse lots of people and many might also choose to differ. But if we
carefully research on the area of Tort and civil injuries then we can find the validity of
 P a g e | 19

the statement. In order to that, we must first know what tort is and also its
characteristics. Then we should compare it with what we know of civil injuries. By
using real life examples of cases we can also bring out vital points regarding tort and
its purpose. Using the connection between tort and civil injuries, the statement can be
defined as valid or not.
Under the study of law there are different areas such as property law, contract
law and constitutional law. All of these areas are clearly defined with proper course of
action. It is easier for anyone to identify and understand these areas of law unlike the
area of tort law. It’s a little complicated area of law which is still difficult to be defined
properly. A lot of it is based on situation that can only be identified in real life cases.
Next part tries to define a general idea of what Tort is.
A tort is the infringement of a private right and distinguished from a public right.
Generally speaking, every infringement of a private right i.e., the right to personal
safety, reputation, or possession, denotes an injury for which the injured person is
entitled to compensation from the wrongdoer. The wrongful act must come under the
category of wrongs for which the remedy is a civil action for damages.
The essential remedy for a tort is an action for unliquidated damages, but there
are other remedies also. All the following torts are civil injuries: Trespass, false
imprisonment, defamation, deceit, negligence, nuisance, conspiracy, privacy, abuse of
legal procedure, intimidation, slander, passing off, injury to person etc.
All torts are wrongful acts which may give rise to a legal remedy in the form of
an action for damages. The wrongful act must come under the category of wrongs for
which the remedy is a civil action for damages. The essential remedy for a tort is an
action for damages.
Although a tort is a civil injury, all civil injuries are not torts. For example,
public nuisance committed by a person is not a tort and an action for it has to be taken
by the State. Only in cases where the particular act of public nuisance amounts to private
nuisance those private citizens are entitled to bring action. if a person wrongfully
obstructs a public road, the Government authorities are, as a rule, entitled to take action
against the wrong-doer. On the other hand, if the obstruction causes great
inconvenience, delay and excess cost of conveyance to a particular person who has to
travel that way along with heavy luggage in loaded Wagons and is compelled to take
another route, he will be able to get damages from the wrongdoer for the special damage
suffered by him. Thus the invasion of a public right or a right that belongs to the public
in general, such as the right to a public high-way, is not as a rule actionable as a tort,
for the remedy of the public is by indictment, and if every member of the public were
allowed to bring actions in respect of such invasion, there would be no limit to the
number of actions which might be brought. However, when, in addition to the injury to
the public, ‘a special, peculiar and substantial damage’ is occasioned to a particular
individual by the infringement of a public right then such individual will have a private
redress by an action for damages.
 P a g e | 20

According to Salmond, the following four classes of injuries or wrongs stand

outside the sphere of tort : (i) wrongs exclusively criminal; (ii) civil wrongs which
create no right of action for unliquidated damages, but give rise to some other form of
civil remedy exclusively; (iii) civil wrongs which are exclusively breach of contract;
and (iv) civil wrongs which are exclusively breaches of trust of some other’s merely
equitable obligation.
Although a tort is a civil injury, not all civil injuries are torts, for no civil injury
is to be classed as a tort unless the appropriate remedy for it is an action for damages.
Such an action is an essential characteristic of every true tort.

2.5. Foundation of Tortious Liability

Is it the Law of Tort or Law of Torts? (Theories of Salmond and Winfield
as to tortious liability)
Basic Principle of Liability
Under the law of torts one can sue the other for damages ensuring from violation of
legal right in one person and violation of legal duty by the other. One can be held liable for
violation of social and moral duties. Generally, a person is liable for those wrong on his part
which he intends to bring about or which resulted due to negligent act on his part. Thus, these
liabilities are liabilities based on fault. But there is an exception to this general rule in the
doctrine strict liability i.e., Liability without fault or no-fault liability. As per this theory
wrongdoer will be held liable for the consequences of his acts even though he has been vigilant
enough while doing the act or even though there is no negligence on his part or even if there is
no intention on his part to bring the result ensued.
There is difference of opinion among the jurists regarding whether there is any general
principle of tortious liability. In this respect two competing theories have been propounded by
jurists which are opposed to each other.
In this connection, Salmond raised a question, “Does the Law of Torts consist of
fundamental general principle that it is wrongful to cause harm to other persons in the absence
of some specific ground of justification or excuse, or does it consist of a number of specific
rules prohibiting certain kinds of harmful activity, and leaving all the residue outside the sphere
of legal responsibility?”
In other words the question is: “is it the Law of Tort or Law of Torts?”

Is it Law of Tort?
Law of Tort, implies that Every Wrongful act, for which there is no justification
or excuse by law to be treated as a tort. In other words, the aggrieved part can sue
whether wrong/damage caused to him can be justified under the law, if not then the
 P a g e | 21

wrongdoer, without considering whether the wrong has been covered under particular
name like nuisance, negligence. This theory is supported by Winfield.
Sir Fredric Pollock was the founder of this theory. The main Supporter of this
doctrine is Dr. Winfield. According to Dr. Winfield every wrongful act which causes
harm to any person is tort unless there is some legal justification for it. For example-
if I cause injury to my neighbour then he can sue me for damages even though there
may be no particular name of my wrongful act such as assault, battery, deceit or slander
or whether it has no special title at all; and I shall be liable if I cannot prove lawful
justification.
Winfield while supporting his views comes to the conclusion that law of torts is
growing and from time-to-time courts have created new torts which were sometimes
regarded innominate torts. There does not seem, therefore, a respectable body of
opinion and practice in favour of the view that the law of tort is based upon a general
principle that all harm to another person is presumptively unlawful. At any rate. it is
clear from these and other instances that the law of tort is steadily expanding and that
the idea of its being clothed, cabined and confined in a set of pigeon holes is untenable.
Is it Law of Torts?
Law of Torts, implies that this branch of law consists only a number of specific
wrongs beyond which the liability under this cannot arise. In other words, there is no
liability for the wrongs which are not covered by any specified categories. Sir John
Salmond has supported this and he is the propounder of this theory. This theory is also
known as Pigeon Hole Theory. According to this theory, if there is no pigeon-hole in
which plaintiff’s case could fit in, the defendant has committed no tort.
According to Salmond in the beginning there was no general law of tort in
England. but only law of torts, i.e., action could be brought by the plaintiff against the
defendant for certain specific acts and omissions. If the plaintiff could not bring his case
under the any of legal titles then it was presumed that the plaintiff had no legal
complaint against the defendant. Accordingly, in his famous book Salmond said : “Just
as the criminal law consists of a body of rules establishing specific offences, so, the law
of torts consists of a body of rules establishing specific injuries. Neither in the one case
nor in the other there is any general principle of liability.”
Whether I am prosecuted for an alleged offence, or sued for an alleged torts, it
is for my adversary to prove that the case falls within some specific and established rule
of liability and not for me to defend myself by proving that it is within some specific
and established rule of justification or excuse.
Thus, according to Salmond there was no English law of Tort, but it was merely
an English law of Torts, that is, a list of acts and omissions which, in certain conditions,
were actionable.
 P a g e | 22

It is because of this difference that Salmond has titled his book as "Law of
Torts" and not "Law of Tort". On the other hand, Dr. Winfield has titled his book as
"Law of Tort".
Salmond’s theory has been criticised by Dr. Winfield who calls Salmond’s
theory as the "Doctrine of Pigeon Hole" i.e., certain specific heads of tort outside which
there is no remedy.

➢ Doctrine of Pigeon Hole

According to Salmond, there is Law of Torts i.e., there was liability only for certain
specific tort and unless the damage suffered could be brought under a recognised head of
liability there was no remedy. There is no general principle of liability and if the plaintiff can
place his wrong in any one of the pigeon-holes, each containing a labelled tort, he will succeed.
This theory is known as ‘pigeon-hole’ theory. If there is no pigeonhole in which the plaintiff’s
case could fit, the defendant has committed no tort. A separate hole has to be constructed for a
new pigeon. Similarly, as many kinds of injuries or harms are there, there must be so many
tortious liabilities. There is no single and general liability. There will be no single general
remedy. There is no fundamental general principle. Certain principles should have been framed
under tortious liabilities. The plaintiff/injured has to select the appropriate principle to meet the
justice. If he fails to seek the appropriate principle, that means the defendant shall not be held
liable and he shall be deemed to have not committed any tort on the plaintiff. According to
Salmond, the Law of Torts consists only a number of specific wrongs beyond which the
liability under this branch of law cannot arise.
Conclusion:
Each theory received some support. In 1702, The Asbhy v. White [(1703) 2 Raym 938]
clearly established in favour of the first theory (Law of Tort) recognising the principle ‘ubi jus
ibi remedium'. C.J. Holt said that ‘If man will multiply injuries, action must be multiplied too;
for every man who is injured ought to have recompense.”
Similarly, in 1762, C.J. Pratt said, ‘Torts are infinitely various nor limited nor
confined". The Winfield’s theory is also supported by the creation of new torts by the courts of
law. For instance, the tort of deceit in its present form had its origin in Pasley v. Freeman
[(1789) 3 T.R.51], inducement of breach of contract in Lumley v. Gye [(1853) 2 E & B, 216],
negligence as a separate tort in the beginning of the century, the rule of strict liability in Rylands
v. Fletcher [(1868) LR 3 H.L. 330], inducement to a wife to leave her husband in Winsmore v.
Greenbank [(1745) Willes 577], and the tort of intimidation in Rookes v. Barnard [(1964) A.C.
1129].
Latter, Winfield made a modification in his view regarding his own theory He then
thought that both his and Salmond’s theories were correct, the first theory from broader point
of view and the other from limited point of view. It is a question of approach and looking at
the things from a certain angle. Each theory is correct from its own point at view.
 P a g e | 23

3. ESSENTIAL ELEMENTS OF TORT

3.2. General Conditions of Liability in Tort or Essential Elements of Tort
To constitute a tort the following essential elements must be present:
i. Wrongful act or omission- there must be breach of some duty or a wrongful act or
omission on the part of a person;
ii. Legal Damage- that wrongful act or omission must result in legal damage or
actual damage to another; and
iii. Legal Remedy- the wrongful act must be of such a nature as to give rise to a legal
remedy in the form of an action for damages.

(i) Wrongful Act or Omission

The first essential ingredient or element in constituting a tort is that a person must
have committed a wrongful act or omission or breach of duty.
A wrongful act or omission is said to have been committed by a person who has not
performed his duty like a reasonable and prudent person or has broken it intentionally.
Thus, in order to constitute a tort, the defendant must have done an act which any other
person under those circumstances would not have done or he must have omitted to do
something which any other person under those circumstances would do.
(ii) Legal Damage
Legal damage is second important element or ingredient in constituting a tort.
“Damage” means the harm or loss suffered or presumed to be suffered by a person
as a result of some wrongful act done by another person. Hence, the sum of money
which is awarded by the court to compensate ‘injury’ is called “damages”. ‘Legal
damage’ means an invasion or infringement of private legal right.
On the basis of presumption of damage, rights are of two types: (i)absolute and
(ii)qualified. In case of violation of absolute right, the law conclusively presumes
damage although the person wronged may have suffered no pecuniary loss
whatsoever. The damage so presumed is legal damage. Violation of absolute right
is, therefore, actionable per se, i.e., without proof of any damage. In case of
qualified rights, there is no presumption of legal damage and the violation of such
right is actionable only on proof of actual or special damage. In this case injury or
wrong is not complete unless and until actual damage has been caused by violating
the right.
In the leading case of Ashby v. White, 1703, which is illustrative of violation of
an absolute right, the Court observed: “Every injury imports damage but every
damage is not injury”. It should be noted that injuria or infringement of private legal
right resulting from a breach of legal duty is an indispensable element in
constituting a tort. Without injuria no action in tort can be maintained.
 P a g e | 24

It is for the plaintiff to prove that there has been legal damage caused to him
due to wrongful act of the defendant. Even if the plaintiff has not suffered any loss,
still he can succeed if his ‘private legal right’ is violated.
The real significance of legal damage i.e., whether a damage is legal damage or
not can be understood with the help of two maxims, Injuria sine damno and
Damnum sine injuria.
The two important maxims to be studied.
• Injuria sine damno [Violation of a Right Without Damage]
Injuria ➔ Legal injury (infringement of a legally protected interest)
Sine➔ without or absent
Damno➔ Damage or substantial loss in respect of money, comfort, health or
the like

ACTIONABLE
By damnum is meant damage in the substantial sense of money, loss of comfort,
service, health, or the like. By injuria is meant a tortious act; it need not be willful and
malicious; for though it be accidental, if it be tortious, an action will lie. Any
unauthorized interference, however trivial, with some absolute right conferred by law
on a person, is an injury, e. g. the right of excluding others from one’s house or garden.
If A walks across B’s land without B’s permission then A will commit the tort
of trespass to land, even though he causes no damage to the land.
Injuria sine damno means that a violation of a private legal right in rem without
causing any harm, or actual loss or damage to the plaintiff. There are two kinds of torts:
Firstly, those torts which are actionable per se, i.e., actionable without ,the proof
of any damage or loss. For instance, trespass to land is actionable even though no
damage has been caused as a result of the trespass.
Secondly, the torts which are actionable only on the proof of some damage
caused by an act.
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,
because the law presumes damage when such right is violated. Here injury itself is taken
to imply damage. Trespass to person, that is assault, battery and false imprisonment,
and trespass to property, whether it be land or goods and libel are instances of torts that
are actionable per se, and the Court is bound to award to the plaintiff at least nominal
damages if no actual damage is proved.
For a successful action, the only thing which has to be proved is that the
plaintiff’s legal right has been violated, i.e., there is injuria.
Ashby v. White [(1703) 2 Ld Raym] is a leading case explaining the maxim
injuria sine damno. In this case the plaintiff was a qualified voter in Parliamentary
elections. The defendants, who were returning officers, wrongfully, maliciously and
fraudulently refused to register a duly rendered vote of the plaintiff. However, the
candidate for whom the vote was tendered was elected, and no loss was suffered by the
 P a g e | 25

rejection of the vote. The plaintiff sued the defendant for damages. The defendants
contended that since the plaintiff had suffered no loss by refusing to accept his vote as
his candidate had won the election, he was not liable. But it was held that the defendant
by refusing to accept plaintiff's vote violated plaintiff’s legal right and was entitled to
damages. Holt, C.J., observed: “Every injury imports a damage though it does not cost
the party one farthing. For a damage not merely pecuniary but an injury imports a
damage, when a person is hereby hindered of his rights. As in an action for slanderous
words, though a man does not lose a penny, by reason of repeating them, yet he shall
have an action. So, a man gives another a cuff on the year, though it cost him nothing;
no not so much as a little diachylon (plaster) 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 does him no damage; for it is an invasion of his property, and the
others have no right to come there.”
in a similar case, Tozer v. Child [(1857) 7 El & B1 377], the defendant, a
Returning Officer, in exercising his judgment had honestly refused to receive the vote
of the plaintiff who was otherwise, entitled to vote at the election. It was held that as
the defendant had acted without any malice or improper motive, while exercising his
judgment, he had not violated any right of the plaintiff by his conduct and hence no
action lay against him as there was no injuria.
In Nixon v. Herndon (273 U. S. 536) an action for damages will also lie if a
citizen is deprived of his right to vote by a law which is unconstitutional law by reason
of offending right to equality.
Marzetti v. Williams, (1830) 1 B & Ad 415, An action will lie against a banker
if a customer has sufficient funds in his account and the banker, refuses to honour his
cheque, although the customer did not thereby suffer any actual loss or damage.
In Constantine v. Imperial London Hotels (1944) KB 693, the plaintiff was a
member of the West Indies Cricket team which had come to London for test matches.
He was wrongfully refused accommodation in a hotel of his choice. He, therefore,
brought an action against the defendant hotels though he had suffered no loss or damage
by such refusal. The Court awarded nominal damages of five guineas which the
defendant had to pay him for the breach of his right.
In Bhim Singh v. State of J & K [AIR 1986 SC 494], the petitioner, an MLA
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 under Article 21 of the Constitution. By the time the petition
was decided by the Supreme Court, Bhim Singh had been released, but by way of
consequential relief, exemplary damages amounting to Rs. 50,000/- was awarded to
him.
In cases of ‘injuria sine damno’ damages are awarded to the injured persons
whose rights are violated. The quantum of compensation may be small amount as a
recognition of the plaintiff’s right. Sometimes the compensation may be a big amount.
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The purpose of law is to recognise the legal right of plaintiff, and to have the legal
remedy by the way of payment of damages.

❖ Damnum sine injuria [Damage Without Injury]

Damnum ➔ Actual and substantial loss of money, comfort, health, service etc.

Sine ➔ without or absent

Injuria ➔ Infringement of a legally protected interest

NOT ACTIONABLE
`In the present maxim the same words have been used as in the earlier one but there is
a change in the relative positions. Damnum and injuria have interchanged their places leaving
the word sine as such. And thus, the meaning of maxim has also changed. The maxim ‘damnum
sine injuria’ means damage or loss without infringement of legal private right in rem. Thus, no
action lies for mere damage or loss, however substantial, caused by an act which does not
infringe some legal right of the plaintiff. According to Salmond “There are many acts which
though harmful are not wrongful and give no right of action to him who suffers their effects”.
The person who suffers the harm cannot have the remedy in the court of law because the
exercise of a legal right by one person resulted in damage to the other, without violation of his
right.
The maxim suggests that where the defendant's act has not resulted in violation of any
of the plaintiff’s legal right, he cannot claim damages merely on the basis of loss or harm
caused to him and the action will fail. That is to say, mere pecuniary damage does not give rise
to a cause of action in torts unless it is accompanied by infringement of plaintiff's right.
For instance: A opens a fancy shop opposite to B’s fancy shop, and the sales in B’s
shop get diminished causing losses to B. If B sues A, it is not actionable.
The general principle is that the exercise of one’s own common or ordinary rights
within reasonable limits does not ground an action in tort merely because it causes damage to
another. The reason is that “it is impossible to carry on the common affairs of life without doing
various things which are more or less likely to cause loss or inconvenience to others, or even
which obviously tend that way and this in such a manner that their tendency cannot be remedied
by any means short of not acting at all.”
Similarly, damage which is too trivial or indefinite for effective legal recognition, is not
actionable. For example, ‘the law cannot value mental pain or anxiety and does not pretend to
redress. Hence, no action lies for mere mental suffering unaccompanied by physical harm.
Harm which is of such nature that the law considers it inexpedient to provide any right
of pecuniary redress, but provide some other remedy e.g., criminal prosecution, is not
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actionable in tort. For example, public nuisance, where an individual suffers in common with
the public at large is not actionable in tort.
In Gloucester Grammar School case [(1410) YB 11 Hen IV], the defendant, a school
master, setup a rival school next door to the plaintiff’s and boys from the plaintiff’s school
flocked to defendant’s. Due to competition the plaintiff had to reduce their fees from 40 pence
to 12 pence per student per quarter and thus he sustained huge monetary loss. The plaintiff sued
the defendant for the loss. in this case, Hankford, J. said, “Damnum may be absque injuria, as
if I have a mill and my neighbour builds another mill whereby the profit of my mill is
diminished. I shall have no action against him, although I am damaged ..... but if a miller
disturbs the water from going to my mill or does any nuisance of the like sort, I shall have such
action as the law gives”. Thus, it was held that no suit could lie as there was no infringement
of the legal right of the Grammar School although it suffered pecuniary loss.
In Quinn v. Leathem, [(1901) AC 495, 539] it was held that competition is no ground
of action whatever damage it may cause, provided nobody’s legal rights are infringed. Every
person has a right to carry on his trade or profession in competitions with others and if as a
result of a healthy business competition his rival suffers a loss then he is not entitled to recover
any compensation.
Mogul Steamship Co. v. Mc Gregor, Gow & Co., [(1892) AC 25] A, B, C and D,
shipowners, who shipped tea from one port to another, combined together, to keep the entire
trade in their hands and consequently to drive F, a rival ship-owner, out of trade by offering
special terms to customers who deal with them to the exclusion of F. F sued A, B, C and D for
the loss caused to him by their act. It was held that F had no right of action, for no legal right
of F had been infringed. Damage done by competition in trade was not actionable.
In Acton v. Blundell [(1843) 12 M & W 324], (Draining another’s underground water)-
The defendant carrying on mining operations in his own land drained away the percolating
water from the land of the plaintiff and thus dried up the plaintiff’s well. It is held that no right
to maintain an action. The Court observed that “the person who owns the surface, may dig
therein and apply all that is there found to his own purposes, at his free will and pleasure, and
that if in the exercise of such rights, he intercepts or drains off the water collected from
underground springs in the neighbour’s well, this inconvenience to his neighbour falls within
description ‘damnum absque injuria’ which cannot become the ground of action”.
In Chasemore v. Richards, (1859) 7 HLC 349; A land owner and a mill owner who
had for about six years enjoyed the use of a stream, which was chiefly supplied by percolating
underground water, lost the use of the stream after an adjoining owner dug on his own ground
an extensive well and pumped large quantities of water for the purpose of supplying it to the
inhabitants of the district. The plaintiff suffered loss. In an action brought by the land owner it
he had no right of action. It was observed that “ if a man has the misfortune to lose his spring
by his neighbour digging a well, he must dig his own well deeper.”
In Eletrochrome Ltd. v. Welsh Plastic Ltd., [(1968) 2 All ER 205], both the plaintiff
and the defendant were factory owners of two separate factories. Their factories were located
in one locality in an industrial estate. One of the workers of the defendant drove the lorry
 P a g e | 28

negligently and damaged the fire hydrant situated near the factory of the defendant, due to
which water supply through main to the factory of the plaintiff was cut off, and as a result the
work was affected for one day. The next day the departmental authorities effected repairs.
Neither the main nor the hydrant was the property of the plaintiff. The plaintiff sued the
defendant and claimed the loss. The House of Lords held that the plaintiff was not entitled for
damages as the defendant did not violate any right of the plaintiff, as the duty not to damage
the hydrant was owed to the owners of the hydrant that was damaged and not to the plaintiff.
Hence, though the plaintiff suffered damage no injury is caused (Violation of right) to him.
In Mayor & Co. of Bradford v. Pickles (1895) AC 587; The defendants were the
owners of an uneven portion of land. The plaintiff corporation offered to purchase a part of this
land, but they declined when the defendants demanded unreasonably high prices. And they
installed their water works on some other nearby place. Now, the defendant by making
excavations on his own land intentionally intercepted the underground water that used to flow
to the reservoir of the plaintiff. It was held that the injury inflicted by the defendant on the
plaintiff was no legal injury and, therefore, no action lay, although the sole motive of the
defendants in doing so was to coerce the plaintiffs. The court said that the defendants were
doing a lawful act over their own land though with a bad motive. But the bad motive does not
change the character of the act from lawful to unlawful.
In Day v. Brownring, (1878) 10 Ch D 294; The plaintiff’s house was called “Ashford
Lodge” for sixty years, and the adjoining house belonging to the defendant was called “Ashford
Villa” for forty years. The defendant altered the name of his house to that of the plaintiff’s
house. The plaintiffs alleged that this act of the defendant had caused them great inconvenience
and annoyance, and had materially diminished the value of their property. It was held that
defendant had not violated any legal right of the plaintiffs.
ln Town Area Committee v. Prabhu Dayal [AIR 1975 All. 132], the plaintiff
constructed a building without obtaining proper permission from the Town Area Committee.
The Town Area Committee, the defendants demolished the construction. ln an action against
the defendants to claim compensation for the demolition, it was held that the defendants were
not liable as no ‘injuria’ could be proved because if a person constructs a building illegally, the
demolition of such building by the municipal authorities would not amount to causing ‘injuria’
to the owner of property.
In Ushaben v. Bhagyalaxmi Chitra Mandir [AIR 1978 Guj. 13], the plaintiff sued for a
permanent injunction to restrain the defendants from exhibiting the film named “Jai Santoshi
Maa”. It was argued that the film hurt the religious feelings of the plaintiff so far as goddesses
Saraswati and Laxmi were depicted as jealous and were ridiculed. It was held that hurting
religious feelings had not been recognised as a legal wrong. Since there was no violation of a
legal right request of injunction was turned down.
(iii) Legal Remedy
The third essential element for an action in tort is that the act complained is must
give rise to a legal remedy. In other words, there must be some legal remedy against a
wrongful act. A tort is a civil injury, but all civil injuries are not torts. The wrongful act
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must come under the category of wrongs for which the remedy is a civil action for damages.
The essential remedy for a tort is an action for damages, but there are other remedies also,
e.g., injunction may be obtained in addition to damages in certain cases of wrongs. Specific
restitution of a chattel may be claimed in an action for detention of a chattel. Where there
is dispossession of land, the plaintiff in addition to damages also claims to recover the land
itself. But it is principally the right to damages that brings such wrongful acts within the
category of torts. There also exists a large number of unauthorised acts for which only a
criminal prosecution can be instituted. Further, damages claimable in a tort action are
unliquidated damages. For example, as earlier seen an action for money had and received
in the context of quasi-contract, where liquidated damages are claimed is not a tort action.

4. Development of ‘UBI JUS IBI REMEDIUM’

The true foundation of every tort is that law provides remedy for every wrong;
where there is a right there is a remedy. A great wrong is done to a person on violation of
his rights. This wrong is to be remedied lest there should be no use of having a right. The
principles of law of torts are founded on this very salutary doctrine that law provides for
every wrong and thus the law of torts has come into existence.
The law of tort is said to be a development of the above maxim, ‘ubi jus ibi
remedium’ (there is no wrong without a remedy). ‘Jus’ here signifies the ‘legal authority to
do or to demand something’ and ‘remedium’ may be defined to be “the right of action, or
the means given by law, for the recovery or assertion of a right”. If a man 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 it is a vain thing to imagine a right without a remedy;
want of right and want of remedy are reciprocal.
Originally there was no distinction between the various wrongs like torts, crimes
etc. Remedies were given only by way of writs. Thus, there was a action for a wrong only
if a writ was available i.e., if there was a remedy a right was recognised. If there was no
remedy there was no right. The law was ‘ubi remedium ibi jus’ (where there is remedy,
there is a right.
But the law now is ‘ubi jus ibi remedium’ (where, there is a right, there is a remedy.
It is impossible to imagine a right without a remedy. If a person has legal right, he should
have the means to maintain it. Law helps him not only to enjoy that right, but also provides
remedy for any violation of that right.
A right infringed is required to be legal and the remedy sought also is required to
be legal. The legal right and the legal remedy are two sides of the same coin. There cannot
be a remedy for every breach of moral or political right but there is always a legal remedy
for every breach of legal right. A legal right vested in a person imposes a duty on another
person. If the person who is obliged to do that duty fails to do his duty, he violates the right
of the first man and he should compensate for the injury caused.
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This principle has been established for the first time in the leading case of Ashby
v. White (1703). In this case the plaintiff was a voter in a parliamentary election. The
defendant who was the returning officer wrongfully refused to accept his vote. Inspite of
this, the candidate had won the election. The plaintiff sued the defendant for damages. The
defendant contended that the plaintiff had suffered no damage as his candidate had won the
election and no loss caused to the plaintiff. It was held that the defendant was liable to pay
damages to plaintiff as they had violated his legal right-right to votewhether he has suffered
any loss or not. Holt, C.J., allowed the action on the ground that violation of the plaintiff’s
statutory right was an injury, for which he must have a remedy and was actionable without
proof of pecuniary damage. His observations will make the thing clear. He said : "If the
plaintiff has a right he must have as 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 vain to
imagine a right without a remedy for want of right and want of remedy is reciprocal."
Essentials:

• This maxim is applicable only where the right in question is legal.

• The wrongful act must violate the legal right of a person; only then the cause of action
may arise.

• In case, no legal injury is done to the person then the maxim 'damnum sine injuria' will
be applied.

Relevant Case Laws

Sardar Amarjit Singh Kalra v. Promod Gupta & Ors., in this case the court
recognized the maxim ubi jus ibi remedium as fundamental principle of law. It was held by the
Supreme Court that it is the duty of courts to protect the rights of people and to grant reliefs to
the aggrieved party rather than denying it.
In D.K. Basu v. State of West Bengal, this is one of the landmark cases. This case is
related to the cruel and inhumane condition of the detained persons. Mr. D.K.Basu who was
the chairman of legal aid services, West Bengal wrote a letter to Chief justice of India
describing the death of a person in police custody which was published in the newspapers
namely, the India Express and The Telegraph. Thereafter some guidelines regarding the
arrested persons were issued by the Supreme Court. The court further held that violence in
police custody is the violation of legal right of that person and the compensation in the form of
remedy must be given in such cases.
In Bhim Singh v. State of Jammu & Kashmir, this case was regarding the wrongful
detention of a MLA of Jammu and Kashmir who was arrested by a police officer while he was
in his way to parliamentary assembly. He was detained and was not allowed to attend the
parliamentary session. Moreover, he was also not produced before the magistrate in time. There
is a clear cut violation of Article 21 of the Constitution of India. The Supreme Court held that
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the defendants were responsible and awarded Rs.50,000 as compensation to the petitioner for
the infringement of his fundamental right.
In Maretti v. William, the plaintiff was restrained to withdraw the money from the
defendant's bank in spite of the presence of sufficient amount of funds in his account. So there
was the violation of the legal right of plaintiff. The court applied the maxim ubi jus ibi
remedium, and held that the plaintiff is entitled to get the damages because of the infringement
of his legal right.
Its Limits. -The maxim should be read with its necessary limitations so that its real
meaning should not be misunderstood. The maxim is not intended to mean as it is
sometimes supposed to, that there is a legal remedy for every moral or political wrong. If
that's what it meant, it would manifestly be untrue. There is no legal remedy for the breach
of a solemn promise not under seal and without consideration; nor for many kinds of verbal
slander, though each may involve utter ruin, nor for oppressive legislation, though it may
reduce men practically to slavery; nor for the worse damage to person and property inflicted
by most unjust and cruel way. Moreover, in its application to the law of torts, this excludes
the wrongs for which statutory penalty is provided, e.g. , law of crimes. The maxim means
only this that legal wrong and legal remedy are correlative terms and it would be more
intelligibly and correctly stated, if it were reversed, so as to read, ‘where there is no legal
remedy, there is no legal wrong.”
Conclusion
To conclude it may be said that the maxim is generally true to its full extent. In fact,
law of torts owes its origin and development to the maxim, “there is no wrong without
a remedy”. There is, in law, no right without a remedy; and if all remedies for enforcing
a right are gone, the right in point of law ceased to exist.
The fundamental principle is that if, law confers a right upon a person, it must
provide a remedy for its infringement but in practice, the plaintiff is required to bring his
case under anyone of the recognised head of torts. It has been observed in many cases that
if there is no remedy, this is evidence that no right exists.
Where the statutory laws do not provide any remedy, the legal principle, 'where
there is a right there is a remedy' shall be applied (Shivkumar Chadha v. Municipal
Corporation of Delhi) Law always punishes the wrongdoer. Various statutory provisions
are established which contains the remedies for the injured party. Therefore, law has
guaranteed us certain rights and privileges then, law also ensures certain remedies for the
protection of such rights. If there is the existence of legal right then there is legal remedy
also available. This doctrine of common law in England also establishes the fact that there
is remedy for each and every wrong.

5. MENTAL ELEMENTS IN TORTS

5.1.Introduction:
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In every tort there is violation of legal rights of another person. Such a violation may
be the result of deliberate intention (e.g., an assault) or culpable negligence where the
foresight of the consequences is present though they are not directly desired e.g., reckless
driving in a crowded street.
It is well known that mens rea (blameworthy mental condition) is an essential element
of a crime. A person cannot be convicted for an offence unless his mens rea, i.e. guilty
intention is proved. This in other words means that act alone cannot constitute a crime
unless it is accompanied by mens rea. This fundamental principle of criminal liability has
been expressed by the latin maxim “actus non facit reum, nisi mens sit rea” which literally
means that a guilty act together with a guilty mind constitute a crime in other words an
act is not a crime unless it is committed with a particular criminal intention. What
constitutes mens rea is laid down in the case of offences defined in the Indian Penal Code.
The ultimate end of criminal law is to prevent harm by punishing the doer of it. It is clear
that it is useless to punish a man unless he did the wrongful act with a guilty mind. Under
criminal law mens rea or a guilty mind is an important element for punishing a man for
committing a crime. Here the question is how far mental element is an essential element
for determining the tortious liability.
Relevance of Mental Elements in Torts In doing any wrongful act, generally the three stages
of the human mind are examined which are as follows:
i. Intention;
ii. Motive; and
iii. Malice.

1. INTENTION
• Meaning
Intention is a term which is difficult to define. It can be variously said to mean the
object, purpose, the ultimate aim or design behind doing an act. Intention is the conscious
voluntary exercise of the mental faculties of a person to do an act, for the purpose of
accomplishing or satisfying a purpose. Intention has been defined as the fixed direction of the
mind to a particular object, or determination to act in a particular manner and it is
distinguishable from motive that which incites or stimulates action.
Intention is the result of working of the brain and can be gathered from judging the act
and the circumstances under which it was done. Intention connotes a conscious state in which
mental faculties are roused into activity and summoned into action for the deliberate purpose
of being directed towards a particular and specified act and which the human mind conceived
and perceived before itself.
Intention is a state of mind and it cannot be permanent, man’s state of mind can change
in any moment. It is an internal fact, something which phases in the mind and direct evidence
of which is not available. The word ‘intent' does not mean ultimate aim and object. Nor is it
used as a synonym for ‘motive’.
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Intention is often referred in different terms under criminal law like ‘knowingly’,
‘voluntarily’, ‘fraudulently’, dishonestly’, ‘malignantly’, ‘wantonly’, maliciously’, ‘reason to
believe’ etc. All these words indicate the blameworthy mental condition required at the time of
commission of the offence in order to constitute an offence.

• Knowledge as a Sub-level of Intention

An act is intentional as to its consequences if the person concerned has the
knowledge that it would result and also the desire that it should result. The intention of
men are inferences of reason from their actions where the action can flow but from one
motive, and be the reasonable result of that one intention. The act must be done with a
wrongful intention (meaning intentionally and without just cause or excuse).
‘Wrongful’ means ‘not fair, morally right or legal.’ ‘Wrongful intention' means ‘spite,
evil intention, malevolence, unfair intention, immoral intention, illegal intention, illegal
or immoral motives. When a person has intention to commit some wrong act, he is
having the knowledge that what would be its consequences and that he wants it to get
fulfilled:
When I throw a stone at you with the desire that it should hit you and
accordingly it hits you, I have intentionally thrown the stone upon you.
Desire for a particular consequence is predominant in all intentional acts. But in
certain cases, law will impute intention to the parties. In such cases in point of law
parties will be deemed to have intended the natural and probable consequences of their
acts. For example, if I fire a gun at your dog wishing merely to scare it and in fact some
of the pellets hit it, it is not open to me to say that I intended only to scare it and not to
hit it. So also, if the pellets hit you who were standing by the side of the dog, I cannot
raise the plea of non-intention. In such cases the law will presume the natural
consequences of those acts.

• Importance of Intention in Torts

Generally, intention is not an essential condition for liability in tort. The purpose of tort
is not to punish the wrongdoer but to award compensation to the injured. A person is deemed
to know the natural consequences of his act. If A is injured by an act of B, then B will be liable
even though he has no intention of harming A.
In Guille v. Swan [(1882) 19 Johns 381] (Balloon Case) the defendant flew in a balloon
but unfortunately had to embark in the garden of the plaintiff. A huge crowd entered the garden
to witness him as a result of which his garden was damaged. The plaintiff sued the defendant
for damages. The defendant pleaded that he never intended to harm the plaintiff in such a
manner but it happened accidentally. But the Court held that defendant was liable because loss
to the plaintiff’s garden was the natural consequence of defendant’s act as crowd would
naturally wish to see the person flying in the balloon. The defendant could foresee the
consequence of his act, and it was sufficient that plaintiff had suffered loss.
In Wilkinson v. Downtone [(1897) 2 QB 57] (The Greyhair case) the defendant jokingly
told the plaintiff that her husband had met with an accident, his legs were broken and was
hospitalised. The plaintiff suffered nervous shock and got seriously ill and her hair turned grey.
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She sued the defendant for damages. It was argued on behalf of the defendant that he simply
played a practical joke and never intended the consequences. But this argument was rejected
by the court and the defendant was held liable to pay damages. The defendant was held liable
because, he committed a wrongful act although he did not intend to harm the plaintiff.
• Negligence and Recklessness
Negligence as a mental element in tortious liability is just the reverse of intention and
usually signifies total or partial inadvertence of the defendant to his conduct or its
consequences. In exceptional cases there may be fully advertence to both the conduct and its
consequences. But at any event, there is no desire for the consequences and this is the
touchstone for distinguishing negligence from intention.
It is a case of negligence when the consequences are not adverted to, though a
reasonable person would have foreseen them. It is “recklessness” when the consequences are
adverted to though not desired and there is indifference towards them or willingness to run the
risk. Recklessness is sometimes called “Gross negligence” but very often and more properly it
is assimilated with intention. In simple words, when circumstances demand care and a person
fails to perform the duty to take care, he is liable for the tort of negligence.
• Exceptions
Intention as a rule is not an essential condition of tort in most of the cases e.g., nuisance,
copyright, injury to person or property. However, in some torts, such as, assault, deceit,
defamation, malicious prosecution, interference with trade or contractual relations and
conspiracy, intention is one of the essential requirements. it may be noted that in negligence
there is no intention or desire for the consequences. But when negligence is so severe that it
amounts to recklessness or gross negligence then it is very often assimilated with intention.
However, in a large number of cases of torts, absence of intention is not a permissible defence.
(ii) MOTIVE
• Meaning
Motive is not to be confused with intention. Motive has been described as ‘ulterior
intent or objective’. It means the reason behind the act or conduct. By motive is meant anything
that can contribute to, give birth to, or even to prevent any kind of action. Thus, motive may
be good or bad.
Motives are irrelevant in criminal as well as tortious liability. Motive is the moving
power which impels to action for a definite result; intent is the purpose to use a particular means
to effect such result. If a man knows that a certain consequence will follow his act, it must be
presumed in law that he intended that consequence to take place although he may have had
some quite different ulterior motive for performing the act.
The motive for an act is not a sufficient test to determine its criminal character. An act
which is lawful cannot become unlawful merely because it is done with an evil motive. It is the
act not the motive for the act that must be regarded. If the act, apart from the motive, gives rise
merely to damage without legal injury, the motive, however reprehensible it may be, will not
 P a g e | 35

supply that element. If an act is prima facie lawful, it would not be rendered unlawful because
it was inspired by a malicious motive.
For example, If A has motive to help the poor, and to fulfil his motive, he plunders the
rich. For a good motive, he adopts an illegal way. The law does not excuse him. A shall be
punished. If A has ill-motives, and he performs his acts legally then the law does not punish
him. Thus, although the motive be pure or good, the act done under it may be criminal. Purity
of motive does not purge an act of its criminal character. Generally, an act which is unlawful
cannot, in law, be excused on the ground that it was committed from a good motive and vise
versa.
Motive though not a sine qua non for bringing the offence home to the accused, is
relevant and important on the question of intention. Motive may serve as a clue to the intention.
It may act as a supportive of intention.

• Importance of Motive in Torts

Motive is not that much important in law of torts as its other elements. Motive is
the ulterior object or purpose of doing an act. Good motive will not excuse a person from
liability where the act is prima facie a legal injury. The presence of a good motive or
benevolent intent will not justify a tortious act. The following case will illustrate this
principle:
In the case of Thorns (1466) YB 6 Ed 4, (The case technically cited as Hulle v.
Orynge 1466. Y.B.M. 6 Edw. IV). In this case the defendant and the plaintiff were adjoining
owners. While the defendant was cutting the thorns which had grown on his boundary some
of them fell upon the plaintiff’s land and in order to recover them, he entered the plaintiff‘s
land. In an action of trespass by the plaintiff the Court held that motives are irrelevant, and
even a desire to recover his own property will not excuse the defendant from liability for
unauthorised trespass upon another’s land. The general irrelevancy of motive (good or bad)
was affirmed by the House of Lords Mayor & Co. of Bradford v. Pickles, (1895) AC 587;
In this case Pickles made excavations on his own land with the intention of intercepting the
underground water that would otherwise have flowed into the adjoining reservoir belonging
to Bradford Corporation. The Corporation brought a suit against Pickles claiming damages
and injunction. It was proved at the hearing of the case that in making the excavations, the
defendant was actuated solely by the malicious motive of doing injury to the plaintiff and
thus coerce them into buying his land. It was held that the defendants were not liable as
they were doing a lawful act over their land whatever may be their motive. The Court said
that a lawful act does not become unlawful merely because it was actuated with a bad
motive.
In Allen v. Flood, (1898) AC 1, the plaintiffs were two workers (Shipwrights)
engaged on repairs of wood work of a ship while some iron-workers were also engaged at
the ship to do the iron work. The iron-workers came to know that the plaintiff’s had been
previously employed for doing the iron-work in another ship and thereupon resolved in a
meeting of their union not to work with the plaintiffs, and to stop work until the plaintiffs
were not discharged by the ship owner. Allen, the active official of the union informed
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about this decision of the union to the ship owner who thereupon discharged the plaintiff.
Since the wood workers were engaged on day-to-day basis, there was no breach of contract
by their discharge by the ship owner. The discharged Shipwrights sued the iron-workers
union official Allen for conspiracy. The House of Lords held the defendant not liable as he
did nothing wrong in communicating the decision of his colleagues (iron-workers) to the
employers of the plaintiff. Secondly, even if they acted maliciously, their discharge from
job was not wrongful. The defendant's plea was far from having any malice against the
plaintiff‘s, their action being directed to protect the interest of iron-workers which by no
stretch could be called as an act of conspiracy. The Court in its decision once again
reiterated that if the act is lawful, the Court will not go into the motives of the defendant
nor shall it treats it damaging result an act of conspiracy. A lawful act cannot become
unlawful merely because it is done with any motive, at the same time, if the conduct is
unlawful, good motive will not exonerate the defendant.
• Exceptions
The exceptional cases where motive is relevant as an ingredient are torts of
malicious prosecution, malicious abuse of process and malicious falsehood. Motive is also
relevant in the torts of defamation, nuisance and conspiracy. In some cases there may be a
plurality of purposes and it may become necessary to decide as to what is the predominant
purpose. For example if persons combine to protect their own interests and to damage
another person they would be liable for the tort of conspiracy if the predominant purpose
is to cause damage and damage results; but if the predominant purpose is protection of their
legitimate interests they would not be liable even if damage is caused to another person.

• Distinction Between Intention and Motive

‘Motive’ means causing movement; that which is actuated; an actuated purpose; that
which incites to action. it differs from intention. Intention has been defined as the fixed
direction of the mind to a particular object, or a determination to act in a particular manner, and
it is distinguishable from ‘motive’ that which incites or stimulates action.
According to Austin, “the intention is the aim of the act, of which the motive is the
spring.
According to Salmond, “every wrongful act may rise two distinct questions with respect
to the intent of the doer. The first of these is: how did he do the act? Intentionally or
accidentally. The second is: if he did it intentionally, why did he do it? The first is an enquiry
into his immediate intent; the second is concerned with his ulterior intent or motive.
Though motive and intention appear to be synonymous terms, there is a sharp
distinction between the two. The immediate purpose of doing an act is called intention whereas
the ultimate object of that act is its motive. Motive is related to some benefit or satisfaction
which a person seeks to achieve by his act, but it is not so in case of intention. The distinction
between these two can illustrate as follows:
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If a man administers poison to a person his intention is obviously to kill that person but
his motive may be to obtain the property of that person after his death on the basis of Will
executed by that person. Likewise, if a person in order to save his children from starvation,
enters into another person’s kitchen and steals away a few loaves of bread, his intention is evil,
that is committing theft but his motive is undoubtedly good as he wants to save the life of his
children who were starving to death.
For example, A steals some money from the house of B. He might have stolen the
money to feed his starving children, or to fulfil his luxuries, or to repay the debts incurred by
him. To feed his starving children, or to fulfil his luxuries, or to repay his debts, etc., are the
motives. ‘To steal’ is A’s intention, whereas the reasons behind stealing are his motives.
This illustration shows that though the intention behind doing an act may be bad but it
might have been done with good motive. Salmond states that motive refers to some personal
benefit or satisfaction which the actor desires whereas intention need not be so related to the
actor.
(III) MALICE
• Meaning
Motive and malice are two distinct words used differently in the law of torts,
but they are entangled with each other. Motive means ulterior intent or inner drive
which signifies the reason for a man’s conduct. When an act is done with bad intention
then it is called malice.
Malice, thus, means ‘evil intent’. Malice means wickedness of purpose, or a
spiteful or malevolent design against another; a purpose to injure another; a design of
doing mischief; or any evil design or inclination to do a bad thing, or a reckless
disregard to the rights of others, or absence of legal excuse, or any other motive than
that of bringing a party to justice.
Malice is not merely the doing of a wrongful act intentionally, but it must be
established that there was spite or ill will or any indirect or improper motive.
'Malice' in its common acceptance, is a term involving some intent of the mind
and heart, including the will; and has been said to mean a bad mind; ill-will against a
person; a wicked or evil state of the mind towards another; an evil intent or wish or
design to vex or annoy another; a willful intent to do a wrongful act; a wish to vex,
annoy or injure another person or an intent to do a wrongful act; a condition of the mind
which shows a heart regardless of social duty and fatally bent on mischief.
• Classification
The word ‘malice' usually means evil or bad motive. But in law malice has two
distinct meanings: firstly, improper, evil or bad motive (Malice in fact) and secondly, a
wrongful act done intentionally, without just cause or excuse (Malice in law).
(a) Malice in Fact
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Malice-in-fact is an act done with ill-will towards an individual. It is also called

as ‘evil motive’, ‘express malice’, ‘actual malice’, ‘improper motive’ etc. Malice-in-
fact depends upon motive. Motive means an ulterior reason for the conduct. it is
different from intention. which relates to the wrongful act itself. The immediate
intention of a person may be to commit theft, the motive for theft may be to buy food
for his children or to help a poor man. As a general rule motive is not relevant to
determine a person's liability in the Law of Torts. A wrongful act does not become
lawful merely because the motive is good. Similarly, a lawful act does not become
wrongful because of a bad motive or malice.
The rule that a wrongful act is not converted into a lawful act by a good motive
is dealt in the case of Thorns (1466) YB 6 Ed 4, (The case technically cited as Hulle v.
Orynge 1466. Y.B.M. 6 Edw. IV). In this case the defendant and the plaintiff were
adjoining owners. While the defendant was cutting the thorns which had grown on his
boundary some of them fell upon the plaintiff’s land and in order to recover them, he
entered the plaintiff‘s land. In an action of trespass by the plaintiff the Court held that
motives are irrelevant, and even a desire to recover his own property will not excuse
the defendant from liability for unauthorised trespass upon another’s land.
In South Wales Miners Federation v. Glamorgan Coal Company ((1905) AC
239], in this case, the plaintiffs, the owners of Coalmines brought an action against the
defendants, a miner’s union, for inducing its workmen to make the breach of a contract
of their employment by ordering them to take certain holidays. The act of the defendant
was not actuated by any ill-will but the object was to keep up the price of coal by which
the wages were regulated. The House of Lords held the defendant liable.
The rule that a lawful act does not become unlawful merely because of an evil
motive is dealt in Bradford Corporation v. Pickles [(1895) AC 587]. In this case the
defendant made certain excavations over his own land as a result of which the water
which was flowing in unknown and undefined channels from his land to the adjoining
land of the Corporation was discoloured and diminished. It was done by the defendant
with a motive to coerce the plaintiffs to purchase the defendant’s land at a high price.
In this case the damage was caused maliciously, but at the same time the
defendant was making a lawful use of his own land. it was held by the House of Lords
that the defendant was not liable. In such a case motives are immaterial. It is the act not
the motive for the act, that must be regarded. If the act apart from the motive gives rise
merely to damage without legal injury the motive, however, reprehensible it may be,
will not supply that element.
• Exceptions
The exceptions to the general rule that malice4in-fact is irrelevant in law of torts
are : (i) defamation on a privileged occasion; (ii) malicious prosecution; (iii) willful and
malicious damage to property; (iv) injurious falsehood about goods, slander, of title etc.;
(v) malicious conspiracy; and (vi) maintenance.
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(b) Malice in Law

Malice-in-law or ‘implied malice’ means a wrongful act done intentionally without
just cause or excuse. It is synonymous with ‘intention’. In common parlance, malice
means ill-will against a person but in its legal sense a wrongful act, done
intentionally, without just cause or excuse
The term malice in law signifies either-
(i) The intentional doing of a wrongful act without just cause or excuse, or
(ii) an action determined by an improper motive in.
According to Halsbury’s Laws of England, “malice in fact is malue animus
indicating that action against a party was actuated by spite or ill will against him or by
indirect or improper motive.”
Malice means the presence of some improper and wrongful motive that is to say
an intent to use the legal process in question for some other than a legally appointed
and appropriate purpose. It means an improper or indirect motive other than a desire to
vindicate public justice or a private right. It need not necessarily be a feeling of enmity,
Spite or ill-will; it may be due to a desire to obtain a collateral advantage.
Malice in Law is was described by BAYLEY J. “Malice in common acceptation
means ill-will against a person, but in its legal sense it means a wrongful act, done
intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to
produce death, I do it out of malice, because I do it intentionally and without just cause
or excuse. If I maim cattle without knowing whose they are, if I poison a fishery,
without knowing the owner, I do it out of malice, because it is a wrongful act, and done
intentionally.
So, a wrongful act, done knowingly and with a view to its injurious
consequences may be called ‘malicious': But such malice derives its essential character
from the circumstances that the act intentionally done and constitutes a violation of the
law.
In Shearer v. Shields [(1914) AC 808 at 813] Viscount Haldane described
malice-inlaw as under: “A person who inflicts an injury upon another person in
contravention of the law is not allowed to say that he did so with an innocent mind; he
is taken to know the law and he must act within the law. He may, therefore. be guilty
of malice-in-law, although, so far the state of his mind is concerned, he acts ignorantly
and, in that sense, innocently.”
ln Quinn v. Leathem [(1901) AC 495], A, without just cause or excuse induced
B’s workmen to discontinue their work in breach of their contract with B. A did this
prompted by good motive to do good to both, B and B’s workmen. It was held that
nonetheless A was liable, in as much as the procurement of breach of contract without
just cause was a tort and, therefore actionable.
Malice-in-law simply means a wrongful intention which is presumed in case of
an unlawful act, rather than a bad motive or feeling of ill-will. For example, in an action
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for defamation it may be mentioned that the alleged statement was published falsely
and ‘maliciously’. Here it simply means that the statement is false and is also made
without lawful justification.
Malice-in-Law may be deemed to exist when an order is made contrary to the
object and purpose of the statute under which the order is made.