This is the branch of law governing actions for damages for injuries to certain kinds of rights, like the rights to personal security, property and reputation. The award of pecuniary reparation for such injuries was the subject of regulation by the laws of all communities, ancient and modern. In England the rules regarding it had been slowly developed by the Courts daring several centuries. After the middle of the nineteenth century these rules had to undergo a process of great expansion to meet the needs of an urban and industrial civilisation. The invention of the steam engine and the motor car, the development of industry and commerce, the growth of large and crowded cities, the rise of the modern newspaper, and in more recent years the invention of air-craft and the wireless have brought many advantages to the citizen but have also increased the chances of injury to his private rights. This branch of law has therefore attained great proportions and attracts a very large amount of litigation in England and in the United States, though not to the same extent in India. It is still in the process of development and adaptation to the conditions of a changing world. It is a live and growing branch of law and, as its main theme is the definition of the individual’s rights and duties in conformity with prevalent standards of reasonable conduct and public good and convenience, it is of profound interest to the student of law and of the social sciences.
Tort: The word ‘ tort ’ means in law a wrong or injury which has certain characteristics, the most important of which is that it is redressible in an action for damages at the instance of the person wronged or injured, e.g., assault, libel, trespass, nuisance. It is a French word which means, in its etymological sense, a ‘ twisting out ’ and in a popular sense, a crooked act, a transgression from straight or right conduct, a wrong. In this generic sense, it was introduced into the terminology of English law by the French-speaking lawyers and judges of the courts of the Norman and Angevin Kings of England. It was in these courts that the foundations of modern English Law were laid during the twelfth and thirteenth centuries. The state of the law in England prior to the Norman Conquest was rudimentary and primitive. After the Conquest, French became the spoken language of the courts, and the language of legal treatises and of reports of judicial proceedings for a number of centuries. Thus it happens that most of the technical terms of English law are French in origin. The word ‘ tort ’ was at one time very near passing into literary use as a synonym for wrong. Even in law it was an obscure term till the middle of the Seventeenth century. It was then that the practice began, in the courts of common law, of distinguishing between actions in ‘ contract ’ and actions for other wrongs, and of using the word ‘ tort ’ as a compendious title for the latter class of actions. Since then it was usual to speak of “ actions in contract ” and “ actions in tort.“ Thus the word became a term of the law with a restricted application to a particular class of wrongs. But it was really after the middle of the nineteenth century when the law of torts was regarded as a separate division of law that the word obtained its modern currency. We will see presently that it still bears the impress of the circumstances in which it came to be used four centuries ago.
It is generally recognised that it is not possible to frame any precise or scientific definition of a tort. It has been defined, for instance, as “ a wrong independent of contract, for which the appropriate remedy is a common law action,” i.e., an action which would have been entertained by the old courts of common law, before the Judicature Act, 1873. This can hardly claim to be a defintion of a legal concept. It comes down from a period of legal evolution when the procedural features of a tort claimed more attention than the jural. Dr. Winfield has made a critical examination of many possible or current definitions and the one suggested by him is as follows; “ Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” This is more informative than the previous definition and perhaps supplies a good working rule in many cases but as the learned author himself recognises, it cannot claim to be precise. For instance the phrase “ duty towards persons generally ” is rather vague. It is hardly adequate, on the one hand, to include duties arising from special relationships like carrier and passenger, or doctor and patient, or on the other, to exclude duties between trustee and beneficiary, or guardian and ward, which fall outside this branch of law. Besides it is not wide enough to include cases of absolute liability such as that of an employer for the tort of his servant. Such liability is tortious in the sense that it pertains to the branch of law conventionally known as the law of torts but it would not be accurate to say that it arises from a breach of duty by the employer to the person injured by his servant. The difficulty in defining a tort is due to the fact that the term was chosen not to signify any definite legal concept but rather as a convenient title or caption for wrongs for which a particular class of remedies or forms of action was allowed under a judicial system and procedure that are now defunct. Those wrongs, however, are diverse in their legal constituents and cannot be comprehended in a simple or concise formula. This circumstance does not signify any difficulty in understanding this branch of law. Indeed it has been well taught and expounded by several text-writers, notably Sir Frederick Pollock, Sir John Salmond and more recently. Dr. Winfield, not to speak of many others who have examined different aspects or sections of it. Instead of attempting to define a ‘ tort ’ we may state its main characteristics as follows:
It will be convenient to disouss the points of distinction here indicated in the following order:
A tort differs from a crime both in principle and in procedure. A tort is an injury or breach of duty to an individual for which he is entitled to get reparation from the wrong-doer, while a crime is regarded as a breach of duty to the public as a whole for which the offender is punished by the society or the state. An injury is both a tort and a crime when it is a, breach of both these duties, eg., assault, libel, theft. Sometimes an injury may be regarded only as a crime and not as a tort; for instance, a public nuisance like an obstruction of a highway is an offence, but no action for damages will lie unless the plaintiff has sustained special damage. Conversely, an injury may be only a tort and not a crime when Jit lacks the element of danger to public interests, e.g, innocent or mistaken trespass to land. Whether a certain conduct is worthy of punishment or reparation is a matter of legal and social policy. In many important matters the policy is well-settled as in the case of serious injuries to person and property which are both punishable and actionable, but there is a large margin of cases where the policy responds to the changing needs of time, place and circumstance. Modern legislation like the Municipal and Public Health Acts, makes many things punishable which were not so before. Slander is a punishable offence in India but not in England. In parts of India where Prohibition Acts were in force, selling or drinking liquor was a crime. The Fatal Accidents Act of 1846 in England permitted for the first time an action for damages against a person causing the death of another while there was no such remedy before. Since the middle of the last century the liability of employers for the torts of their servants has received considerable extension. This largely explains the difficulty of framing any more precise definition of a tort or crime than that a tort is a wrong for which the law allows an action for damages, and a crime is conduct which the law regards as deserving punishment.
Secondly, a tort differs from a crime because the remedy for the former is an action for damages by the aggrieved party in a Civil Court, while the remedy for the latter is a prosecution in a Criminal Court by the state who is in theory the prosecutor, though the prosecution may be at the instance of the injured party. The object of a civil action is private reparation and satisfaction, and that of a criminal prosecution is punishment with a view to promote public interests by prevention of offences. This method of stating the distinction is broadly true but admits of qualifications. Sometimes damages in a civil action for a tort are awarded as a measure of punishment and prevention e.g., in an action for seduction or for gross libel ; and in a criminal proceeding part or whole of the fine may be ordered to be paid to the complainant or other injured party by way of compensation. Besides, from the point of view of legal philosophy, the ultimate purposes of civil and criminal remedies are not clearly severable. The award of damages also promotes public interest by prevention, and punishment may afford satisfaction to the injured.
The distinction between tort and crime belongs to a comparatively mature stage of civilisation and social order. The laws of primitive communities were concerned mainly with the payment of pecuniary reparation to the person injured and allowed private composition of even grave crimes like homicide and serious bodily harm. To quote the famous observation of Sir Henry Maine, “the penal law of primitive communities was not the law of crimes but the law of wrongs or torts.” The system of pecuniary composition was itself an advance on a condition of total lawlessness and barbarity when the “blood-feud” or private war at the instance of the person wronged or his kindred on the wrong-doer and his kindred was a normal affair. The Anglo-Saxon laws had not advanced very far beyond the stage of legal evolution marked by a system of private composition for murder and other serious crimes. They were mostly concerned with the recital of the customary amounts payable for various kinds of injuries, viz., ‘ wer ’ or the price set on every person according to his rank which was payable by the person causing his death, and ‘ bot ’ which was payment for personal and other injuries. In the archaic system of justice which the Anglo-Saxon laws disclose, they bear a close resemblance to the codes, known as the Leges Barbarorum of the Teutonic tribeson the continent. English law during the six centuries before the Norman Conquest was practically unaffected by the influence of the mature jurisprudence of Rome, notwithstanding the Roman occupation of England for three centuries before the fifth, or the promulgation of Justinian’s Codes in Eastern Europe during the sixth century. It was after the Norman Conquest and during the reign of strong rulers like Henry II that Courts were established which could punish all forms of violence as offences against the King’s peace instead of allowing them to be compounded as private wrongs. Indeed, these Courts began by showing their strength by awarding punishments and amercements indiscriminately, and even for civil causes of action. It was long afterwards that the theory of punishment assumed its modern form. It is worthy of note that in spite of the high degree of development which Roman Law attained in the sphere of private law, its law of crimes continued to be imperfect, and to the last, theft was not, save in some special cases, a punishable crime but only a delict or private wrong.
The distinction between civil and criminal procedure came much later than that between reparation and punishment. The famous action of trespass which was introduced in the thirteenth century was in origin both a civil and a criminal proceeding and ended in both damages and punishment. In course of time the criminal ‘indictment’ became separate from the civil action.
Under this head we shall deal in the first place, with the courts of common law,, secondly, with wrongs which were redressed exclusively in other courts, and lastly with ‘ actions for torts ’ and ‘ damages ’. The courts of common law at the time of their, abolition in 1875 were three in number, viz., the court of Queen’s Bench, the court of Common Pleas and the court of Exchequer. From these courts of original jurisdiction, appeals lay to the court of Exchequer Chamber. The foundations of the constitution and procedure of these three courts were laid during the reign of Henry II in the twelfth century. At the time of the Norman Conquest, England was covered with a network of numerous local courts like the courts of the county and the hundred, and many rival and competing jurisdictions of feudal lords and landowners. These courts administered the varying customs of the district or other locality. The King and his assembly of leading men exercised judicial powers only in rare and exceptional cases. Under the strong rule of the Norman Kings their judicial functions increased. But it was by the reform of Henry II who appointed a small body of five men to hear all the complaints of the kingdom that England got her first judicature in the modern sense, i.e., a body of learned men “ who do justice habitually.” This court was known as the King’s court, and also as the Curia Regis — a name which was also used to refer to the King’s Council of leading men and officials of which the King’s court was in origin a judicial branch. The law administered in the King’s court came to be known as the ‘ common law ’ as it was common to the whole country unlike the varying customs prevailing in the other courts. In course of time, the increase of business in the King’s court and the convenience of suitors required the separation of that court into two tribunals, viz., one court which always sat at Westminster to decide disputes between the King’s subjects, and another court which was presided over by the King and followed him. The one came to be known as the court of Common Bench and later on, as the court of Common Pleas ; and the other as the court of King’s Bench. The court of Common Pleas heard actions between subject and subject. The King’s Bench heard all serious criminal cases called “Pleas of the Crown” and entertained also civil actions for trespass which was accompanied by the use of force and was against the ‘ King’s peace, ’ and actions in which the King and his officers were interested. The court of King’s Bench was at a later time dissociated from the person of the King who ceased to attend or preside over it, and became like the court of Common Pleas another court of common law with a set of professional judges. The Exchequer was originally only an office for collecting the King’s revenue and was the financial side of the Curia Regis as the King’s court was its judicial aspect. It decided questions arising between the King and the tax-payers about rates, assessment and the like. In course of time the judges of the King’s Bench as well as the officers of the Exchequer known as ‘ Barons ’ of the Exchequer, adopted various devices to attract to themselves the civil litigation that belonged to the court of Common Pleas, until at last these three courts became courts of concurrent original Jurisdiction and came to be known as courts of common law. They were abolished and merged in the present High Court of Justice by the Judicature Act. They had from their inception two distinctive features which had a profound influence on the course of English law, viz.,
A writ is a formal order from the King to an officer or a private person enjoining some act or omission. It need not be necessarily connected with courts of justice, e.g., a writ to convoke Parliament or hold an election. The original writ was an order of the King issued by the Chancellor or his office known as the Chancery and summoning the defendant to appear in the King’s court or the later common law courts and show cause against the plaintiff’s complaint. It was ‘ original ’ because it initiated proceedings in those courts and was therefore distinguished from ‘ judicial writs ’ which were issued in the course of a proceeding, e.g., to summon a juror or a witness. It came to be regarded as the royal warrant to these courts to entertain a cause and as the foundation of their jurisdiction. This was due to the circumstances in which the King’s court had its origin. In establishing a strong and central court of justice, Henry II made use of the ‘writ’ for enabling parties to seek its aid in preference to the local and baronial courts to which most litigation then belonged by custom. As the writ in effect took away a cause from one of the rival courts, it was regarded as essential to enable the complainant to have his cause heard and to compel the defendant to answer in the King’s court. As the justice of this court was more efficient and began to be appreciated, the demand for writs increased and they were obtained from the Chancery , at prices varying with the nature of the writ. For about a century from the time of Henry II, new writs were freely issued for providing remedies for new classes of cases. But this process came to a premature end by the middle of the thirteenth century on account of the opposition of feudal nobles and barons. In 1258 after the Barons War they were able to get the King (Henry III) to agree to a provision that the Chancellor should not issue writs other than writs de cursu, i.e., writs which were customary and could issue as ‘ of course ’, without the approval of the King and his Council. During the reign Edward I, the famous Statute of Westminster II (A. D. 1285) partially restored the writ-making power of the Chancery, by enacting that if “ a writ is found in one case but none is found in like case falling under like law and requiring like remedy,” the dorks of the Chancery shall make one. But this power could be exercised only in a limited class of cases, viz., those which fell under a like law. At this time the constitution and powers of Parliament were taking shape and the invention of now remedies for new cases was regarded as the province of the legislature and not that of the courts. The writs became not merely limited in number but also crystallized in form. It was the practice of the clerks in the Chancery to state in the writ the subject-matter of the complaint in precise and formal language. The writs already issued were classified according to their subject-matter, and copies were preserved so that the clerks who usually drafted them could use old forms for new cases. The result was that a plaintiff whose case would not fit into the formula of one of the writs already in use could not seek the aid of the King’s court, or, in the modern phrase, had no ‘ cause of action. As the plaintiff’s statement of his claim usually adopted the language of the writ, forms of action acquired a rigid and formulary character. It was by a series of statutes in the last century that all this was changed. An action is now commenced not by different kinds of original writs but by a uniform writ known as a writ of summons. Forms of action have been abolished and a plaintiff is not bound to adopt any set formula in his plaint or statement of claim, but may state the material facts in appropriate language.
Trial by jury has for several centuries been the mode of trial of civil and criminal cases in the courts of common law. In recent years, however, the power of the judge to dispense with a jury in civil actions for damages has been enlarged. In a trial by judge and jury, questions of fact are decided by the jury, and questions of law by the judge. The system of trial by jury owes its origin to certain measures adopted by Henry II for making his court more popular and effective. He introduced the system which at that time was known as the ‘ inquest ’ or inquiry by a group of neighbours on oath for the purpose of apprehending suspected criminals, and for deciding certain classes of disputes, e.g., claims to possession and ownership of land, claims of the Church to land as a religious endowment. The inquest was in vogue with the Frankish Kings in Western Europe and was copied from them by the Norman rulers for ascertaining their rights and privileges. The innovation consisted in introducing the inquest as an adjunct of the law courts. The modes of trial which were prevalent at that time and which had come down from the Anglo-Saxon period were of a primitive kind. They were ;
Among such wrongs the most important were breaches of trust and of other equitable obligations by a trustee, executor or guardian. These were redressed in the court of Chancery. This court took its name from the Chancellor who was originally only a minister of the King, but in course of time acquired judicial functions in various cases. This was due chiefly to the rigidity of common law writs and forms of action and the consequent denial of justice in many cases. After many conflicts with the courts of common law the exclusive jurisdiction of the court of Chancery was established over large classes of litigation, e.g., administration of trusts or of estates of deceased persons, infants, lunatics, etc. The Chancellor was not bound by any technical rules but did equity and satisfied his conscience ; therefore, his court was known as the court of Equity. This court differed from the common law courts in many important matters. It had no writs or forms of action but entertained complaints by petitions or ‘ Bills.’ It had no trial by jury. In course of time it developed a distinct code of principles, had its own precedents, employed a distinct terminology and had a separate Bar and Bench. The Judicature Act abolished these rival courts and empowered the High Court in all its divisions to administer both law and equity. But in spite of this fusion of the common law and equity courts, the principles and precedents that had grown in these courts cannot be easily assimilated. Thus a breach of trust or of other equitable obligation may resemble a tort in that it is a breach of duty imposed by the general law and redressed by the award of damages,® but it was and continues to be outside the sphere of a tort.
A breach of a marital obligation, e.g., adultery, is not a tort. It was formerly within the exclusive cognisance of ecclesiastical courts which in England had a long history and exercised jurisdiction, among others, over matrimonial causes. The relief afforded by them in the above instance was not damages but divorce. By a statute of 1857 this jurisdiction was taken away from them and vested in a court known as the Divorce court.^ Against the adulterer, however, the husband had formerly an action for damages in trespass in the common law courts. Since the Act of 1857, this action is no longer available and the only remedy is by making him a co-respondent in a petition in the Divorce court and claiming damages against him. Thus an injury to the marital relation is not a tort ; but an injury to the parental relation, e.g., seduction of a daughter, is a tort as an action for damages has always been entertained by the common law courts.
Prior to the Judicature Act the word faction was the name given to a proceeding in the common law courts, while a proceeding in the court of Chancery was either a ‘ bill ’ or’ ‘ information.’ Since that Act, the word applies to proceedings in all the divisions of the High Court. Besides, by a series of reforming statutes ending with the Judicature Act, the forms of action which prevailed for several centuries in the old common law courts were abolished. Since then, a plaintiff in an action for damages for a tort, as in Any other action, is not bound to adopt any set words or formula. But in spite of these epoch-making changes, the old common law actions for torts have not lost their importance. The principles which have gathered round the old forms constitute the bulk of the law of torts, and are the source to which we have to look for ascertaining whether in a given case plaintiff has a cause of action. The early common law was primarily concerned with remedies and not with rights and duties, and has therefore been described as a ‘commentary on writs.’ The result was, to use a famous phrase of Sir Henry Maine, that substantive law was gradually secreted in the interstices of procedure. A reference to the chief forms of action which were available in the courts of common law for torts is indispensable even at the present day for under standing the case-law. These forms fell into two classes:
The action of trespass was so called from the name of the writ which commenced it, the writ of trespass. This writ was introduced in the middle of the thirteenth century and was intended to provide an effective remedy in the King’s court for persons aggrieved by violent injuries to person and property. It stated the nature of the complaint in the following form which the plaintiff’s declaration invariably adopted ; his peace and falling within the jurisdiction of his own customary court. As the Kings consolidated their power, the limits of their peace and of their jurisdiction also widened, and the writs became increasingly popular as an instrument of protection against powerful malefactors. The writ was also popular because of its advantages over existing remedies available in the local courts. At that time the chief remedy for serious injuries to person and property was the ‘ appeal ’ or accusation. The appellor had to recite his accusation in a set formula at the risk of losing his appeal even by the fault of a syllable. The appellee or accused could offer to wage a duel. If he was respectable and no suspicion attached to him, he could offer a ‘ wager of law,’ or a number of oaths in support of his innocence. The unsuccess ful party was liable to punishment which he could redeem by payment of compensation or fine. The appeal was nothing more than the primitive method of vengeance or the ‘ blood-feud ’ carried on under judicial sanction and regulation, and was becoming unpopular with the dawn of civilised ideas of justice. The new remedy was intended to take the place of the appeal and did so on account of its superior advantages. While it was free from the technicality and other defects of the appeal like the trial by battle, it gave the parties the benefit of the new mode of trial by inquest or jury and provided relief by way of punishment of the wrongdoer and also damages to the injured. Its process was speedy and effective as the defendant could be seized and imprisoned if he would not appear, and outlawed if he could not be found. The appeal was, however, reserved for grave injuries called felonies, as in such cases the instinct of vengeance could not then be wholly suppressed, e.g., murder, maim, rape, arson, burglary, larceny For a felony the remedy of trespass was in theory not available but in practice was allowed in every case, with the exception of murder, by permitting the plaintiff to omit the words charging a felony in the com plaint. In another and perhaps the opposite direction the scope of the new remedy was also extended. It was used even when there was little or no use of force, and the expressions ‘ vi et armis ’ and ‘ contra pacern ’ became common form or fictions. Thus the mere entry of a man into land in another’s possession or the mere tonohing of another’s person or goods was deemed a trespass for the purpose of the use of this action. The proceeding in trespass had originally both a criminal and a civil aspect At that time the distinction between civil and criminal procedure in the King’s court was only in the process of formation. In course of time the distinction became clear between the proceeding known as the ‘ indictment ’ for a felony or misdemeanonr, and the civil action for damages for tres- pass The action of trespass served the function of the principal action for torts in mediaeval England. It was the remedy for violent injuries to person or property which then required the chief attention of the law courts, and by a process of extension by means of legal fictionsfor various wrongs like even a peaceful or slight interference with the posses sion of land or goods.
In course of time other types of wrongs called for a remedy in the King’s court. Some early instances were cases where a person who was entrusted with the possession of a chattel by the owner injured it by neglect e.g., a ferryman who overloaded his boat with the result that the horses entrusted to him for carriage were drowned, or a farrier who negligently shod another’s horse and injured it. An action of trespass would not lie against these persons because they did not use forc6 or disturb another’s possession. In these and similar cases it became the practice to invoke the power conferred by the Statute of Westminster II on the Chancery to issue writs in like cases, and to sue in an action which came to be known as ' trespass on the similar case,’ or trespass on the case,’ or simply, ‘ action on the case In course of time the procedure in actions of trespass became distinct from that in actions of trespass on the ease and it was necessary to draw the litre between the two actions, as a plaintiff’s mistaken choice of one action instead of the ether had serious results and involved his losing the action altogether. In Leame v. Bray the distinction was stated to be that trespass lay for a direct injury and case for an indirect or consequential injury ; and it was held that injury due to the defendant negligently driving his carriage and causing a collision with that of the plaintiff was a direct injury. In the case of a man throwing a log into a highway, “ if at the time of its being thrown, it hit any person, it is trespass ; but if after it be thrown, any person going along the road receives an injury by falling over it as it lies, it is case.” In Scott v. Shepherd the defendant Shepherd, mischievously threw a lighted squib into a market house. It fell on the shed where one Yates sold ginger bread. One Willis, to prevent injury to himself and Yates, caught it and threw, it across when it fell on the shed of one Royal who took it and threw it across, when it struck the plaintiff Scott and exploded and put out his eye. It was held that the injury to the plaintiff was directly and immediately caused by the defendant, as Willis and Royal, the intermediate agents, acted involuntarily and for self-protection, and that therefore trespass was the proper remedy. From time to time the courts of common law allowed actions of trespass on the case, or actions on the case, for new kinds of wrongs or injuries for which remedies were demanded by an advancing civilisation. This they did — largely out of ^ear of the rival and encroaching jurisdiction of the Chancellor — by a liberal interpretation of the requirement of ‘ consequential damage.’ Thus they allowed actions on the case for defamation, deceit, malicious prosecution, nuisance, negligent injuries to person or property, conversion of goods, etc. In the famous case of Ashby v. White an action on the case was allowed at the instance of a voter in a Parliamentary election who complained that the defendants who were the returning officers, had maliciously prevented him from exercising his statutory right of voting in that election. It was contended for the defendants that the action had no precedent and was not maintainable as the plaintiff had not sustained any actual or pecuniary damage consequential on the defendants’ illegal conduct. Holt, C. J . over ruled these objections and allowed the action on the ground that the 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. Some of his observations in this case have become classical :
This case is of great importance in the law as it established the principle, ubi jus ibi remedium, “whenever there is a right, there is a remedy,” or, as it is also sometimes expressed, “ there is no wrong without a remedy.” It marks a new era of remedial justice because the older tradition was characterised by an extreme rigidity of writs and forms of action and a strict and illiberal exercise of the power conferred by the Statute of Westminster. The older tradition was responsible for denial of a remedy in large classes of cases where justice required it and was a prime cause of the growth of equity jurisdiction. It proceeded on the assumption that where no remedy or known form of action was available there was or could be no right in law. This case marks the change that had come over the attitude of the courts of common law. By declaring that they would allow a remedy where they recognised a right, they furnished the law of torts with an elastic principle of development. This development proceeded, till forms were abolished, through the various actions on the case which were allowed from time to time. Since then actions are innominate and pleadings need not contain statements which it is unnecessary to prove, e.g., ‘ trespass by force and arms ’ and ‘against the King’s peace.’
The damages which a plaintiff has a right to recover in an action for a tort belong to the category known as ‘ unliquidated damages. ’ This phrase is applied to cases where a plaintiff claims not a predetermined and inelastic sum hut such an amount as the court in its discretion is at liberty to award, though in his pleading, he may specify a particular amount. The phrase ‘ liquidated damages ’ ' refers to a sum which has been predetermined by contract or statute. The right to recover unliquidated damages is an essential and distinctive feature of a tort. Where that remedy is not, but some other remedy alone is avail able, the wrong or injury complained of is not a tort, e.g., a public nuisance for which no action for damages will lie in the absence of special damage. Though damages are an essential feature, other remedies may also be available in an action for a tort, e.g., injunction to stop a continuing wrong like libel, trespass, nuisance. Damages are usually intended to be a pecuniary compensation for the injury ; they are then called substantial damages. But they may be determined by other considerations also. They may be awarded with a view to punish the defendant as in an Action for seduction or gross libel ; they are then called exemplary, punitive or vindictive damages. They may be merely nominal when the plaintiff has sustained an injury to his legal right but no actual damage. They are called contemptuous damages, when a farthing or other trifling sum is awarded as a mark of disapproval of the plaintiff’s conduct in going to court.
The action for unliquidated damages has always been regarded as the great remedy of the common law courts but was unknown to early legal institutions in England. The Anglo-Saxon laws, like the laws of many ancient communities in Europe, contained elaborate tariffs of flxed sums of compensation for different kinds of injuries, e.g., 50 shillings for loss of a foot, 10 shillings for loss of a great toe, half of it for each of the other fingers, etc. These sums were determined by custom and were the prices at which the wrongdoer could escape the wrath of the injured or his kindred. As yet the judge had no power to decide the question of liability or the amount of damages for such injuries. It was really after the introduction of trespass in lieu of the older remedy of appeal that the iialnrally obscure tbe distinction between tort and contract. The growth of trade and commerce and the resulting increase of litigation in contracts made a special form of action for enforcing simple contracts necessary ; and courts and pleaders met the situation in their usual manner by con verting the old action of trespass on the case into a specialised form known as the action of assumpsit. By the seventeenth century this action had become popular and was in constant use. It was then that the distinction between tort and contract emerged, but it manifested itself in the form of differences in various details of procedure. Thus it was held that unlike trespass or case, the action of assumpsit survived to or against the representative of a deceased party.® Similarly other points of distinction in process and procedure were recognised in decisions of the seventeenth century. It is to these decisions which recognised and expressed the antithesis between actions in contract and those in tort that the word ‘ tort ’ which had till then only a generic sense of wrong owes its currency in law in its modern sense. Thereafter till the abolition of forms of action in the last century the antithesis continued to be of practical importance to the lawyer, and the twofold division of personal actions into actions in contract and actions in tort became common learning and was recognised by cases and statutes. With the disappearance of forms of action greater attention to juridical principles and distinctions became possible and the difference between a tort and a breach of contract was stated in the form of a distinction in the nature of the right or duty — a distinction which till then lay hidden in the interstices of procedure. Though forma of action and their peculiarities of process and procedure have disappeared, some of the old distinctions in procedure are still of practical importance. Thus under the common law an action on tort generally abates but an action on contract survives on the death of a party to it. It was only in 1934 that the former position has been altered by statute and actions for tort survive with certain exceptions.’
The theoretical distinction between duties arising by consent of parties and duties imposed by the general law serves as the boundary line between the spheres of tort and contract in the modern law. It is, however, blurred and obscure in some parts of that boundary. The two principal instances are implied contracts and quasi- contracts.
In this case the duty is not undertaken by any express contract or consent but imposed by law because consent could be presumed from the conduct of the parties. For instance when a person goes into a hotel and orders food or gets into a public conveyance like a tramcar or bus, he does not expressly consent to pay for the food or the carriage but the duty to pay is inferred or implied from his conduct. Again a duty may be implied as a term of a contract in consonance with its express terms, e.g., the duty of a doctor to possess and exercise due care in an operation on a patient. Similarly in contracts made between attorney and client, bailee and bailor, carrier and passenger, duties of care are implied by law suitably to the nature and terms of the contract in each case. These duties are however really delictual because they arise independently of any contract taut on account of the great convenience and popularity of the old action of assumpsit litigants were allowed to use it instead of the actions of trespass or case. This popularity was due to procedural reasons to which reference will be made later. Thus various kinds of duties which were imposed by law came to be regarded as contractual and obtained the title of ‘ implied contract. ’ The duties with which we are here concerned are those which though really delictual and independent of contract were regarded as contractual and within the province of the law of contracts rather than that of the law of torts. In these cases an action on the case would lie but an action of assumpsit was also allowed and often preferred. In cases where a sum of money was claimed, a special form of assumpsit known as indebitatus assumpsit was invented and became popular. In this action the plaintiff had to allege an undertaking or promise, e.g., to pay the money due. But the promise was a fiction and became a mere matter of form.
In various types of cases a person is under a duty to-restore a benefit unjustly obtained by him at another’s expense. The duty is imposed by law in the interests of justice, e.g., to repay money received by mistake, to restore chattels so received or their value, to pay the value of services rendered by way of salvage. In these and other similar cases it became the practice to use the action of indebitatus asmmpfsit as it was found a convenient remedy. Sometimes the duty may be entirely delictual and may arise from the commission of a tort ; for instance when a person commits conversion or deceit he is under a duty to restore the goods converted or obtained by fraud or the value of such goods. To such cases also the above remedy was extended. The plaintiff would waive the tort and sue in contract ; in other words, instead of suing in the action of trover or deceit he would sue in the action of indebitatus assumpsit. This was due again to the greater convenience of this form of action. As already stated, it was necessary in this action to allege an assumpsit or promise to pay. The pleaders Were allowed to do so, though the promise or contract to pay was a fiction. This fiction was far more complete and removed from, fact than that in the ease of implied contract because here the duty is imposed by law on a person without his consent. Sometimes he may have even refused to receive the benefit which he is made liable to restore, e.g., necessaries supplied to a person’s wife without his consent or even against his will. Besides in some cases of quasi-contract, unlike implied contract, there could be no contract for want of contractual capacity, for instance, in the case of necessaries supplied to a minor or lunatic his estate is liable to pay their value. In all these cases the use of a contractual form of action for purposes of convenience led to their being regarded as appertaining to the law of contracts and to their being designated by the title of quasi-contract, though they may have no element of contract at all, In the case of some of them the. duty is wholly delictual and properly within the province of the law of torts but by historical accident and the exigencies of old procedure even such cases have come to be classed under quasi-contract and relegated to the province of the law of contract. In all of them the duty arises under the law and not by consent or contract. In that respect quasi-contract is rather analogous to tort than to contract. But it differs from tort in two respects. First, it may arise independently of the commission of any tort, e.g., money received by mistake, salvage, contribution for common debt discharged. Secondly, the claim in quasi-contract is usually for a liquidated sum of money or the value of chattels or services specified. Even in other eases the compensation asked for is conceived of as a debt for which the form of action mentioned above was appropriate. On the other hand damages for tort are unliquidated and variable by aggravating or mitigating circumstances. In truth quasi- contract is in its juristic conception different from either contract or tort and falls under a separate or third category which, it has been suggested, may be called ‘ unjust enrichment.’ The reason for the present unjuristic or illogical arrangement by which legal obligations without any contractual element in them and sometimes entirely delictual or tortious are assigned to the sphere of contract is twofold. First, divisions of law were aligned on distinctions between' old forma of action, and second, a twofold division of common law actions into contract and tort was formerly convenient and new legal concepts evolved in response to new conditions and needs were assigned to either of them. The heavy hand of history has made this a permanent feature of the English law which has been transferred to codes baaed on it. Thus Chap. V of the Indian Contract Act deals with quasi-contract and bears the title “ of certain relations resembling those created by contract.” Due to the entanglement of old ideas the theory of waiver of tort, as we shall see later, generated misconceptions leading to injustice which had to be cleared only in 1941 by the House of Lords.
Thus we see that the boundary between tort and contract as these terms are now understood in law, though in the main juridical, is in parts only conventional. The phrase ‘ independent of contract in the definition of a tort, therefore, means virtually, other than wrongs which are regarded as breaches of contract, and serves to indicate the actual content of these phrases in the modern law. A definition of a tort as a breach of duty arising under the law and of a breach of contract as a breach of duty arising from the consent of parties would obviously be too general, as some breaches of duties of the former description are comprised in the conventional division of law known as “ the law of contracts. ”
A tort is a breach of a legal duty and not a breach of a wholly moral obligation. It is not every wrong in the popular sense that is a tort ; the building of a wall on one’s land merely with a view to obstruct the passage of light to a neighbour’s new house may be morally culpable but is not an actionable wrong. The law generally seeks to express the moral sense of the community but between law and morals there have always been points of divergence. Some of them are inevitable as the law has regard in framing its rules not merely to ethical notions but also to practical considerations. Its rules often represent a compromise between conflicting principles or policies. In the case just mentioned the right of an owner of property to use it as he likes prevails over the right of the neighbour to the natural amenities of his house ; the former, however, gives way to the latter right, where the neighbour has peacefully enjoyed the light for twenty years. The maxim, alterum non laedere. “ To hurt no one ”, was propounded by Justinian’s Institutes as a rule of law but is obviously too broad for practical application. Sometimes the disharmony between law and morals or justice may not be inevitable but may be due to the technicality or the conservatism of the law. Thus till 1846 an action for damages against a person who killed another would not lie at the instance of the latter’s widow or children even though they were thus left destitute. This was altered in that year by an Act of Parliament in England. The process of reforming the law by removing its anomalies and making it reflect properly the moral and social sense of the community was a marked feature of the nineteenth century. Among the great reformers whose labours and writings contributed to this result Bentham was perhaps one of the foremost. The process of law reform has now assumed a more active phase than in the past after the appointment in 1934 by Lord Chancellor Sankey of a Law Revision Committee, some of whose recommendations have been carried out by legislation and made notable changes in the law. Just as some moral offences may not be torts, some torts may not be deemed moral offences as where an innocent employer is made to pay for the fraud or mischief of his servant.
The law of torts is a division of the common law of England, i.e., the body of rules which have been affirmed by decisions of the courts of common law and their successor, the High Court of Justice. The expression ‘ common law ’ is used in various senses in different contexts. We have seed that it originally signified the law laid down by the King’s courts for all people and all parts of the country as opposed to local customs administered in the communal and feudal courts in different parts of the country. Here it means the case-law or precedents of the common law courts and is distinguished from statute-law or the law enacted by Acts of Parliament. The English law of torts is in the main the case-law of the courts but has also been supplemented by some statutes. As a separate division of substantive law, the law of torts is of modern growth. Till the middle of the last century the law spoke only of actions in contract and actions in tort. Blackstone, the great exposition of law in the eighteenth century and the author of the Commentaries on the Laws of England, discussed wrongs under the bead of their appropriate remedies and not under modern captions like the law of contracts or of torts. The recognition of the law of torts as a division of law in England may be said to date from 1860 when the first treatise on the subject was published. Since then this branch of law has advanced considerably in volume and importance in England and the United States, on account of the great increase in litigation due to the extensive use of mechanical inventions and the expansion of urban and industrial populations in these countries. It is still in the process of expansion to meet the needs of the changing social and economic polity of the modern world. It retains, however, certain anomalous features which are the heritage of its past history. Some instances have been already noticed, viz., the use of the term ‘ tort ’ for diverse and dissimilar legal concepts with the result that it is difficult to define or explain it in terms of legal principle,‘ the inclusion of entirely delictual duties in the sphere of contract under the heads of implied contract and quasi-contract. Another is the inclusion of absolute liability like that of an employer for the tort of his servant, or such liability imposed by common law or statute, though the person held liable has not committed any tort. The reason for these anomalies is, first, that the divisions of law known as the law of torts and the law of contracts comprised rules that had grown round particular forma of action, and second, the twofold distinction between these forms of action into actions in tort and actions in contract tended to become rigid and prevent the formation of any new or independent category on juristic lines. Sometimes distinctions and classifications whose only claim is their history have the effect of clouding true principle and oven the needs of justice. In a case Lord Atkin had occasion to speak of the old forms of action and ideas invented to meet their requirements and referred to them in the following picturesque language, “ these ghosts of the past standing in the path of justice clanking their mediaeval chains.” In a later case Lord Wright said that “these ghosts have been allowed to intrude into, the ways of the living and impede vital functions of the law.” It should, however, be understood that in spite of occasional lapses due to its history the English law of torts represents a large body of list and sound sense and principle. Besides, during recent years the process of law reform has been more active than before and anomalies and abuses in the law are in the course of elimination by means of legislation as well as judicial decision. The English law of torts has been substantially adopted by the courts in the United States, the British Dominions and India.
The English law of torts has been substantially adopted by the courts in the United States except where variations are called for by local conditions. On account of the diversity of decisions in the various states, the American Law Institute, an association of eminent lawyers and professors, has been at work since 1923 on a compilation of Re-statements of this and other branches of law. The first two volumes of the Re-statement of the Law of Torts were issued in 1931, They form a great contribution to the study of this branch of law and are bound to influence its development in the United States and elsewhere.
The term “delict” or “delictum” in the Roman Law like the word “tort” in the English Law meant a private wrong for which the proper remedy was damages or reparation. It, however, differed from tort in two respects. In one respect it was wider as it included theft and robbery which under the Roman Law were exclusively delicts, while they are now regarded as public wrongs or crimes. In another respect it was narrower as it was confined to certain specified wrongs which according to Justinian’s Institutes fell under four categories ; viz., theft, robbery, damage to a man's property like his slave or animal, and injuria which was here used in the sense of an outrage or affront to a man's person, reputation or family. It excluded wrongs which were known as quasi-delicts, which are, however, comprised in the ‘tort' of the English law, e.g., personal injury caused by an occupier of a house throwing or pouring something from it, damage to property entrusted to the master of a ship, inn or stable caused by theft by his servants. Though the term 'quasi-delict' has no counterpart in the English law, the phrase 'quasi-tort' has been in recent times invented by some writers and finds a place in some stray decisions. It has been used to refer to such widely different cases as vicarious liability of employers for injuries caused by their servants, negligence of a doctor or solicitor for which an action lies in contract or in tort, an omissive breach of duty like the refusal of a common carrier to convey goods, It appears to be a needless addition to legal terminology and a source of confusion. It is not the only instance of the charm exercised by classical phrases over the legal mind. Under the Roman law delict and quasi-delict involved a liability to pay unliquidated damages. The primitive system of private vengeance against the wrong-doer in default of payment of customary amounts of compensation was a feature of the earliest of the Roman codes known as the Twelve Tables. But while this system lingered long in the laws of other countries in Europe, it disappeared and gave place to modern judicial methods at a very early period in Rome. The assessment of damages, like the decision of other questions of fact in the cause, was originally entrusted to a judex or judices who were private persons selected to assist the praetor magistrate. But after the reforms during the absolutism of the later empire, the decision of the whole case by a judge alone became the distinctive feature of the Roman law and of the systems of law based on it in Europe and else-where. The Roman law on the subject of delicts as on others had attained its full development by the third century A.D., on account of the exposition of the classical jurists, and was codified by Justinian in the sixth century. The Justinian law was, after a period of obscurity due to the barbarian invasions of the Roman Empire, revived and adopted under the name, Corpus Juris Civilis, in most of the continental countries in Europe like France, Germany and Holland. It spread from these countries to their distant colonial possessions in other continents. The Code Napoleon which came into force in France early in the nineteenth century was based on the civil law and has since been borrowed and adopted in many countries in Europe and elsewhere. The civil law was also adopted as the private law of Scotland. To this extensive reception of the Roman law, England remained an exception. Her common law was indigenous in its structure and the result of a slow evolution of the precedents of her courts. Thus it happens that the English law of torts though greatly influenced from time to time by the rules and terminology of the Roman law has been developed on independent lines and is not an organic importation of the Roman law of delicts.
In India the English law of torts has been substantially adopted since the advent of the British courts. The English law, civil and criminal, is considered to have been introduced into India in 1726 by a Parliamentary Charter which established the Mayor’s Courts in the three cities of Calcutta, Madras and Bombay. Before passing on to the extent of the application of the English law, it may be interesting to look back on the law of torts in India prior to the British occupation.
The Hindu Law had from the earliest times a law of torts or private wrongs. Its chief sources are first, the smritis of which the Code of Manu is the most ancient, and that of Yajnavalkya with its commentaries the most authoritative in the courts, and other later smritis like those of Narada, Vyasa, Brihaspati and Katyayana which are regarded as supplementary authorities ; and secondly, the commentaries or digests of the smritis by various glossators. The Code of Manu which is assigned by scholars to a period varying from the beginning of the Christian era to ten centuries before it* furnishes a remarkable contrast to the contemporary laws prevalent in Europe and to Sir Henry Maine’s well-known description of them. It does not countenance any right to retaliation or extra-judicial redress or any system of private composition of crimes by payment of fixed sums of damages. On the contrary its law of crimes is fuller and more prominent than its law of compensation for injuries, and it prescribes punishments for wrongs which would now be regarded as wholly civil causes of action, e.g., non-payment of debt, breaches of contract. Its public law proves beyond doubt that the community had long passed its stage of infancy and had attained a highly developed social organisation in which the control of the State or the King over individual conduct was complete and rigorous. Its civil or private law furnishes similar evidence of a high degree of juristic development. Its scheme of civil and criminal law is discussed under eighteen heads, e.g., gifts, sales, partition, bailments, non-payment of debt, breaches of contract, disputes between partners, assault, defamation, theft, robbery. In this scheme of justice the rules regarding compensation for injuries are comparatively unimportant and are only mentioned incidentally under some of the above titles. The right to recover compensation is recognised in three cases, eg., damage to crops by trespass of cattle, bodily injury resulting in medical and other expenses for cure, damage intentional or otherwise to goods. The decision of disputes including that relating to compensation was made by the judge who might be the King himself or his delegate, on evidence of witnesses. When we pass on to the later smritis we find that though they usually adopt Menu’s divisions of law, they have a larger number of rules on this subject, required by the circumstances of a later age. If we take up one of their latest commentaries or digests, like the Viramitrodaya, we find that these rules have been by the process of gloss and interpretation expanded in detail and supplied with technical phraseology. They are not very dissimilar to the subject matter of the modern law of torts and relate to such topics as injuries to person and property, cattle-trespass, waste by lessees, fraud of vendors,®negligence or fraud of carriers or of bailees under different kinds of bailments, measure of damages and defences in different cases. Between the Hindu law and the English law of torts, there is one broad and important point of difference, viz., that the Hindu law recognises a right to compensation only when there is pecuniary loss and not in other cases like assault, false imprisonment, defamation, insult, adultery, etc., which are only punishable and not actionable wrongs. The tort of the Hindu law is thus a much more narrow and restricted legal conception than the tort of the English law or the delict of the Roman law. The Muhammadan law went even further in the direction of subordinating the tort to the crime. It regarded serious acts of violence to the person as punishable and not as actionable wrongs. It had, however, rules about compensation in other cases like usurpation of property.
After the establishment of British courts in India they were enjoined by statute to follow the personal law of the parties, Hindu law in the case of Hindus and Muhammadan law in the case of Muhammadans, only in certain matters like inheritance, succession, marriage and religions usages. In other matters where there was no specific legislative provision they were required to administer justice, equity and good conscience. In cases of torts they have adopted the English common law, as it is generally consonant to justice, equity and good conscience. They have departed from it when any particular rule appeared unreasonable or unsuitable to local conditions, e.g., the rule denying an action for slander when there was no proof of pecuniary damage, the doctrine of common employment. While this is settled to be the proper procedure for the courts in the Provinces and the High Courts in their appellate jurisdiction, the view was long entertained by some authorities that in cases arising within the limits of the three cities, Calcutta, Madras and Bombay, the High Courts were bound by the old Charters to follow the common law as it prevailed in England in 1726 and were not competent to depart from any of its rules. But the Bombay and Madras High Courts have held that this view is really not warranted by the language of the Charters, and that in cases arising in these cities they are bound to administer the English common law only so far as circumstances permit and according to “justice and right.” This view in effect reduces considerably the chances of diversity between the law of these cities and that of the rest of the country. Unlike other branches of the law like contracts, property, trust, etc., the law of torts has not yet been codified in India.
We now proceed in the following chapters to deal with the subject under four heads:
The different kinds of torts discussed in the following chapters are violations of various rights of the individual for which the law allows actions for damages. Some of the most important of these rights are in respect of the security of his person, his domestic relations, his property and reputation. With the advance of civilisation and commerce other rights have secured recognition, e.g., the right to be protected from pecuniary loss caused by perversion of judicial machinery, fraud, interference with contractual relations, trade, business and employment, infringement of patent right, copyright and trade-mark. The law affords redress also for the violation of some rights which have no pecuniary value but are highly prized, e.g., the right to vote, the right to worship, the right to the status of a member of a caste in India. On the other hand the law does not recognise or afford redress for some rights which may be highly prized, e.g., a right to emotional tranquillity or to freedom from mental pain or distress, a right to privacy or to freedom from unauthorised publication of one’s personal or private affairs. But as the learned compilers of the American Re-statement observe, “ the entire history of the development of Tort law shows a continuous tendency to recognise as worthy of legal protection interests which previously were not protected at all.” The general principle in all these cases is that if there is a legal right, there is a remedy for its violation. The remedy is available though the injury does not cause actual or pecuniary damage. If the plaintiff cannot show a violation of any legal right of his, he cannot succeed merely on the ground of damage. These principles are usually expressed by saying that injuria sine damnum is actionable, but damnum sine injuria is not. An instance of the former rule is Ashby v. White ; and of the latter, the old case of the Gloucester Schoolmaster where it was held that the plaintiff, a schoolmaster, had no right to complain of the opening of a new school resulting in the loss of his pupils and the damage suffered thereby was damnum absque injuria. As the concepts of right and duty are correlative, the plaintiff in an action in tort must, in order to succeed, establish a violation of some legal right of his, or of some legal duty of the defendant towards him.