The Law of Torts: Meaning, Scope, and How a Body of Judge Made Law Grew in England and Came to India

The law of torts is the part of the civil law that deals with wrongs which are neither breaches of contract nor breaches of trust, and for which the remedy is an action for unliquidated damages. It is almost entirely judge made. There is no code of torts in England and none in India, and the duties it imposes are found in the decisions rather than in any statute. That single fact shapes everything else about the subject: how it grew, how it is studied, how it is argued, and why it is still growing. This note traces the subject from the Norman writ system to the modern generalisations, and then follows the common law to India, where the courts have added to it in ways England never did.

From the writ system to the modern generalisations, and how the common law reached India

1. The Word and the Definition

• The word is French. "Tort" is the French for a wrong, and it comes through Norman French from the Latin tortum, meaning twisted or crooked. What is straight is right; what is twisted is a tort.
• Salmond's definition is the one most often quoted: 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 of other merely equitable obligation.
• Winfield's definition puts the same thing from the other end: tortious liability arises from the breach of a duty primarily fixed by law; the duty is towards persons generally, and its breach is redressible by an action for unliquidated damages.
• The Indian statutory definition is in the Limitation Act, 1963. Section 2(m) provides that "tort means a civil wrong which is not exclusively the breach of a contract or the breach of a trust". It is the only definition in a central Act, and it is a definition by exclusion.
• Every definition turns on three things: the duty is fixed by law, the wrong is civil, and the remedy is damages that the court must assess.

2. The Scope of the Subject

• It protects the person, through assault, battery, false imprisonment, and negligence causing personal injury.
• It protects property, through trespass to land and goods, conversion, nuisance, and the rule in Rylands v. Fletcher.
• It protects reputation, through defamation, malicious prosecution and injurious falsehood.
• It protects economic interests, though more cautiously: deceit, conspiracy, intimidation and inducing a breach of contract.
• It reaches the State. The old doctrine of sovereign immunity has been steadily cut back, and in India a violation of a fundamental right now sounds in compensation under Article 32 or Article 226.
• It does not reach everything. A loss suffered without the violation of a legal right is not actionable at all, and a duty that arises only from a contract or a trust belongs elsewhere.

3. The Origin: The Writ System

1. The starting point was procedural, not substantive. In the medieval common law a plaintiff could not simply allege a wrong; he had to buy a writ from the Chancery, and each writ carried its own procedure, its own pleadings and its own mode of trial.

2. No writ, no remedy. If no existing writ fitted his complaint, the plaintiff had no remedy at all, however clear the wrong.

3. The writ of TRESPASS covered direct and forcible injury, to the person, to land or to goods. It was actionable without proof of damage, and it remains so today.

4. The writ of TRESPASS ON THE CASE was developed for harm that was consequential rather than direct, under the authority of the Statute of Westminster II of 1285. It is from this writ that negligence, nuisance and deceit descend.

5. The distinction was between directness and consequence, not between intention and carelessness. A log thrown on to the highway that struck a passer by was trespass; the same log left lying there, over which he tripped, was case.

6. Each form of action was a separate compartment. Choosing the wrong writ lost the case, whatever its merits, which is why the early law is a law of forms rather than a law of principles.

4. The Forms of Action Abolished

• The Common Law Procedure Acts, 1852 and 1854 removed the requirement of naming a form of action, and allowed a plaintiff to plead the facts.
• The Judicature Acts, 1873 and 1875 completed the work, fused the administration of law and equity, and created a single High Court.
• But the causes of action survived. Abolishing the forms did not abolish the rules of liability that had grown up inside them.
• Maitland's remark captures it exactly: the forms of action we have buried, but they still rule us from their graves. The modern division between trespass and negligence, and the rule that trespass is actionable per se, are both inheritances from the writ system.

5. The Modern Generalisations

• Donoghue v. Stevenson is the turning point of the modern subject. Until then negligence was a manner of committing certain torts, not a tort in itself, and a manufacturer owed no duty to the ultimate consumer.
• Lord Atkin's neighbour principle provided the general test: a person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour, meaning persons so closely and directly affected by his act that he ought reasonably to have them in contemplation.
• That single case made the growth of the subject possible, because it supplied a principle capable of extension instead of a list capable only of being consulted.

6. How the Common Law Came to India

1. Through the Presidency Towns first. The Charters establishing courts at Calcutta, Madras and Bombay directed them to apply English law, so the English common law of torts operated in those towns from the outset.

2. Through justice, equity and good conscience elsewhere. In the mofussil, where no statute and no personal law applied, the courts were directed to decide according to justice, equity and good conscience, and in practice they took that to mean the English common law.

3. But with a filter. English rules were applied only so far as they were applicable to Indian society and circumstances, and the courts declined to receive those that were not.

4. So the reception was selective. The English division of defamation into libel, which is actionable per se, and slander, which ordinarily is not, was not taken over whole in India, and rules resting on the English poor law or on feudal tenure were left behind altogether.

5. After the Constitution, Article 141 changed the hierarchy. The law declared by the Supreme Court is binding on all courts within the territory of India, so Indian precedent is now the primary authority and English decisions are persuasive only.

6. And Indian courts then went further than English courts had. Absolute liability and the constitutional tort are both Indian creations with no exact English counterpart.

7. What India Added

8. Why It Was Never Codified in India

9. The Position Stated Shortly

1. A tort is a civil wrong, other than a breach of contract or of trust, for which the remedy is an action for unliquidated damages.

2. Section 2(m) of the Limitation Act, 1963 defines it by exclusion, and it is the only such definition in a central Act.

3. The subject began as a set of procedural forms: the writ of trespass for direct injury, and trespass on the case for consequential harm.

4. The forms of action were abolished by the Common Law Procedure Acts, 1852 and 1854 and the Judicature Acts, 1873 and 1875, but the causes of action survived them.

5. Rylands v. Fletcher (1868) supplied strict liability, and Donoghue v. Stevenson (1932) made negligence a tort in its own right through the neighbour principle.

6. The common law came to India through the Charters in the Presidency Towns, and elsewhere through the direction to decide by justice, equity and good conscience.

7. English rules were received only so far as they suited Indian conditions, which is why several of them, including the libel and slander divide, were not taken over whole.

8. Since the Constitution, Article 141 makes Indian precedent binding, and English decisions are persuasive only.

9. India has added absolute liability, the constitutional tort, and a set of statutory no fault schemes.

10. The subject remains uncodified: Pollock's draft Civil Wrongs Bill of 1886 was never enacted, and no general code has been attempted since.