Definitions and Development of Law of Tort

This article is written by Aanchal Rawat, a 2nd-year student of R.N. Patel Ipcowala School of Law and Justice. This article talks about what is tort, essential elements of the tort, history of tort and development of tort.

Suppose you went to vote but you were not allowed to vote by the officer assigned to make sure election is done properly. You were not allowed to vote without any reason even when you were a qualified voter. What will you do? Will you leave this matter and do nothing or will you do something? You should know right to vote is your right. You can go to court to ask for compensation for violation of right. When there is right then there is a remedy available for it. There has been no specific law which punishes for this offence. But as there is a legal injury there is a remedy available for it.

Tort

“Tort” is derived from the Latin word “Tortum” which means to twist or wrong. This term tort originated from the common law of England which means wrong.

Salmond has defined tort as follows:

“A tort is a civil wrong for which the remedy is an action for liquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation.”

Winfield has defined tort as,

“Tortious Liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”

Ratanlal and Dhirajlal has defined tort as,

“Tort is a civil wrong, independent of contract, for which appropriate remedy available damages.”

Essentials of Law of torts

1. Wrongful Act or Omission

Duty to do but not done is an omission.

An act which one is not supposed to do but he does is a wrongful act.

The wrongful act must be wrongful in the eyes of law. A moral wrongful act is not punishable.

2. Legal Damage

The damage should be such that the legal right of a person is violated. If there is no violation of right then there is no legal damage.

3. Legal remedy

The remedy for such acts should be in form of unliquidated damages.

History of Law of Tort

The first time tort was used as a legal term was in the 1580s before it different words were used to define the same concept.[1]

1st case in which the term tort was used for the first time is Boulton v. Hardy. [1597, Cro.Eliz.547]

The law of torts originated from the common law of England. It has been developed as a branch of law in many commonwealth countries.

Till Mid-19th Century law of tort was not developed very much we can say it was underdeveloped.

In the 1860s the first American Treatise on tort was published. However, the subject of tort became particularly established in the 1880s when Oliver Wendell Holmes Jr. wrote about it.

Development of Law of Tort

After Norman’s conquest of England, the legal system becomes disorganized so judgements were carried out on a case by case basis more or less. After 1066, to understand the laws of the village which have developed over two centuries, judges wee delegated a region to travel there and understand their law. At that time the judges which were delegated this work noted and implemented those laws which they thought were most fair-minded and used them in their court findings. These court findings are known called as legal precedents. These precedents were meant to apply equally to the people of society whether it was a lord or a serf.

Due to Norman’s Conquest in England French became the spoken language in England’s Judiciary and thus many technical terms are originated from French language and tort is one of them. The term tort was based on the idea that everyone has certain rights in society. The purpose of tort was to enforce those rights and duties in society.

As precedent was meant to apply equally to everyone in society it was termed as common law.

The law of Torts came to India from England.

Important Case Laws which Developed Tort law in India

M.C Mehta v. Union of India

In this case, the court applied the concept of Absolute liability and held the accused responsible. The principle of absolute liability was taken from the English case Rylands v. Fletcher in that the court held that when a person who for his own purpose brings anything in his land or collects or keeps which is dangerous and if it escapes then the person who brought it will be prima facie liable for the damages which are the natural consequences for its escape.

Similarly, in M.C. Mehta v. Union of India, Shree Ram Fertilizers were held responsible for the damage which happened due to the leak of oleum gas to society.

Jai Laxmi Salt Works Ltd. v. the State of Gujarat

In this case, the court talked about the duty of care and the causation of tort. In the case, the Government of Gujarat had constructed a bundh on the land which involved the risk of change in the course of water. Due to a change in the flow of water nearby properties would be flooded and damaged. So, the Owner of Laxmi Salt Works wrote to Government a letter explaining this matter and asked for a change of location but the Government rejected his request. And afterwards due to heavy rainfall, the claimant’s factory was destroyed. He asked for compensation from the Government. However, the Government refused to pay compensation. Then the Claimant went to court for compensation. The trial court dismissed the case based on Act of God. The High Court held that since the suit was time-barred the respondents will not be liable. However, when the case went in Supreme Court the court held that the damage done to claimant’s factory was not Act of God and the State must care towards the citizens. The court held the State guilty for breaching its public duty and the claimant was awarded compensation.

[1] Bruce R. O’Brien, “Anglo-Saxon Law”, in The Oxford International Encyclopaedia of Legal History, vol. 1 (Oxford: Oxford UP, 2009), 179.

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