Tort: meaning, nature and distinctions

1. Meaning of the word

“Tort” comes from the Latin tortum, something twisted or crooked, through the Norman French tort, a wrong. In law it means a civil wrong, other than a breach of contract or of trust, for which the injured person can sue for unliquidated damages. Conduct that is “crooked” in the sense of departing from the standard the law expects is tortious.

2. Evolution in England

• The writ system. In medieval England a plaintiff could sue only if his complaint fitted an original writ issued from Chancery. The writ of trespass covered direct and forcible injury to person, land or goods.
• Action on the case. After the Statute of Westminster II (1285), clerks framed new writs “in consimili casu” for indirect or consequential harm. Nuisance, deceit, defamation and, much later, negligence grew out of case.
• Abolition of forms of action. The Common Law Procedure Act, 1852 and the Judicature Acts, 1873–75 abolished the forms of action. From then a plaintiff needed only to plead facts showing a recognised wrong. Negligence became an independent tort with Donoghue v. Stevenson (1932).

3. Evolution in India

The law of torts in India is largely uncodified. Courts set up under the Charters applied English common law in the Presidency towns, and elsewhere decided cases according to “justice, equity and good conscience”, which in practice meant English rules so far as they suited Indian conditions. Sir Frederick Pollock drafted an Indian Civil Wrongs Bill in 1886, but it was never enacted. Some parts are statutory: the Fatal Accidents Act, 1855, the Motor Vehicles Act, 1988, the Consumer Protection Act, 2019 and the Public Liability Insurance Act, 1991.

Indian courts have not followed English law blindly. The Supreme Court created the rule of absolute liability in M.C. Mehta v. Union of India (1986) and said English rules apply only where suited to Indian society. In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, 1994 INSC 187, (1994) 4 SCC 1, the Court described the law of torts as a developing branch whose frontiers are not fixed and which grows by judicial decision to meet new kinds of harm.

4. Definitions

• 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.”
• Winfield: “Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
• Section 2(m), Limitation Act, 1963: “tort” means a civil wrong which is not exclusively the breach of a contract or the breach of a trust.

Each definition says what a tort is not (contract, trust) more clearly than what it is. That is a fair criticism to mention in a 10-mark answer. Winfield’s definition is the most useful because it names the source of the duty (the law, not the parties) and the person to whom it is owed (people generally).

5. Essentials of a tort

• A wrongful act or omission. The act must be one the law treats as wrong, that is, a breach of a legal duty. A moral wrong is not enough. An omission is actionable only where there is a duty to act.
• Legal damage. The act must infringe a legal right of the plaintiff (injuria). Actual loss without violation of a right is not enough (damnum sine injuria); violation of a right is enough even without loss (injuria sine damno). This is discussed in the next note.
• A legal remedy. The wrong must be of a kind redressed by an action for unliquidated damages, that is, damages fixed by the court rather than agreed beforehand. This follows the maxim ubi jus ibi remedium.

6. Tort and crime

• Nature of the wrong. A tort is a private wrong against an individual; a crime is a public wrong against society as a whole.
• Parties. In tort the injured person sues; in crime the State prosecutes, and the victim is ordinarily a witness.
• Object and remedy. Tort aims at compensation through unliquidated damages; crime aims at punishment (imprisonment, fine). Compensation to the victim in a criminal case is incidental.
• Compromise. A tort claim can always be settled or withdrawn by the plaintiff. Only compoundable offences can be compounded.
• Law and proof. Torts are mostly judge-made and proved on a balance of probabilities; crimes are defined by statute (now the Bharatiya Nyaya Sanhita, 2023) and must be proved beyond reasonable doubt.
• Overlap. The same act can be both: assault, defamation, nuisance and negligent driving causing death are torts and offences. The civil and criminal proceedings can run side by side.

7. Tort and breach of contract

• Source of duty. In contract the duty is fixed by the parties themselves; in tort it is fixed by law.
• Person to whom owed. A contractual duty is owed only to the other party (privity); a duty in tort is owed to persons generally.
• Consent. Contract rests on agreement; tort is imposed without consent.
• Damages. Contract damages compensate the loss of the bargain and are often liquidated in advance; tort damages are always unliquidated, and exemplary damages are available in tort but generally not for breach of contract.
• Motive. Motive is irrelevant in contract; in a few torts (malicious prosecution, conspiracy) it is relevant.
• Overlap. The same facts may give both claims. In Donoghue v. Stevenson the consumer had no contract with the manufacturer but succeeded in tort. A passenger injured by a negligent carrier may sue in contract or in tort.

8. Tort and breach of trust

A breach of trust is the failure of a trustee to perform the obligations of a trust. It was historically enforced only in the Court of Chancery, so it falls outside Salmond’s “common law action”. Damages for breach of trust are in effect liquidated: they are the value of the trust property lost. A trustee owes duties only to the beneficiaries; a tortfeasor owes them to persons generally. In India breach of trust is governed by the Indian Trusts Act, 1882.

9. Law of tort or law of torts?

The debate is whether there is a general principle of liability or only a list of specific torts.

• Winfield: law of tort. All unjustifiable harm is tortious unless there is a just cause or excuse. On this view the courts can recognise new torts, as they did with negligence in Donoghue and with absolute liability in M.C. Mehta.
• Salmond: law of torts. There are a number of definite wrongs, each with its own rules, like pigeon-holes. If a plaintiff’s complaint fits no pigeon-hole, he has no remedy. Salmond pointed to cases of harm without remedy such as Bradford Corporation v. Pickles (1895) and Mogul Steamship (1892).

Winfield later accepted that both views had truth in them: from a narrow standpoint the law consists of specific torts, but from a broader standpoint the courts can create new ones. The safe conclusion is that the pigeon-holes exist but are not closed; Indian courts in particular have extended liability where justice required.

How this is examined

As an essay: “Define tort. Explain its essentials and distinguish tort from crime and breach of contract” (asked in nearly every recent KSLU paper, including January 2026). The order is word origin, two definitions plus section 2(m), three essentials, then the two comparisons set out as numbered points, closing with the overlap examples. As a short note: “law of tort or law of torts”, or tort and breach of trust. A few lines of history (writs, action on the case, justice equity and good conscience) earn marks in the essay but should not take more than a paragraph.