Tort and its Actionability

This paper attempts to highlight the study of tort law and its action. It explains its meaning and the basic elements that are necessary to constitute torts. Special emphasis has been given to the development of tort law for a better understanding of the present scenario in India. Further, it systematically analyzes the general defenses available against tort with the help of case laws. Also, it explains the remedy available for tort, and the most important thing i:e the present applicability of torts in India has also been explained here.


Tort law is a body of law that addresses and provides remedies for non-contractual acts of civil wrongdoings. A person suffering legal damage can use tort law to receive compensation for those injuries from someone legally responsible or liable. In general, tort law defines what constitutes a legal injury and sets out the circumstances under which one person may be held liable for the injury of another. Tort law covers the acts that are intentional as well as negligent. There are three main objectives of tort law. The first is compensating the victim, the second is punishing the wrongdoer and the third is deterring harmful activities.

As the definition explains that tort is a civil wrong that results in legal injury or violation of legal right vested in the plaintiff with or without damage. The plaintiff can file a civil suit against the defendant for a reward of pecuniary damages in the form of compensation which is unliquidated in nature. A civil suit can be filed for the cases related to nuisance, negligence, assault, battery, trespass, defamation, etc

What is the meaning of Tort?

The word tort has been derived from a Latin word “torture” which means “to twist” thus, tort means conduct which is not straight but twisted or crooked. It is equivalent to the English word “wrong “.

According to Salmond, “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 contract, or, the breach of trust, or, other merely equitable obligation.”[1]

The definition in general term may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages.[2]

It is different from the breach of contract and trust. A tort is when the act of one party causes some harm to the other party due to negligence or carelessness on the part of another party. The one who sues is known as ‘plaintiff’ and the one who issued is known as ‘defendant’.

The person who causes such harm is held liable to pay compensation to the injured party (i:e plaintiff), this compensation can be in the form of money. This money received in the form of compensation is known as ‘damages’. To claim damages, there must be some breach of duty towards the plaintiff which resulted in such injury.

The other party can be sued even if the harm which is caused was not intentional but due to carelessness or negligence. Tort allows people to hold the other person accountable for the injuries suffered by them.

 Constituents of Tort[3] 

Every wrongful act is not a tort. To constitute a tort three conditions need to be satisfied :

  1. There must be some act or omission on the part of the defendant.
  2. The act or omission must result in legal damages;e violation of legal rights vested to the plaintiff.
  3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of damages.

Types of Torts[4]:

Torts can be broadly divided into three categories on the wrong-doing caused, these are as under –

1. Intentional torts – a tort caused by an intentional wrongful act by the defendant is called an intentional tort. These include acts such as assault, battery, trespass, false imprisonment, slander, and libel.

2. Negligent torts – a wrongful act caused due to negligence of the defendant is called negligent torts. These include incidents which usually occur because a person has failed to behave with the level of care that a person with ordinary prudence would have done. Such torts include negligent harm to the body or the property of a person. For eg – if someone has negligently disobeyed the traffic rules and caused an accident, he is liable under negligent torts.

3. Torts under strict liability – if a person commits the wrong held liable irrespective of his intention comes under this category. These torts are of such a strict nature, that the courts deem it fit to rule out the need for proving intention here. Such torts include acts of production of defective goods or medicines which cause a serious injury to the life of the consumer. In such cases, it is not only the manufacturer who is held liable but all those involved in the supply chain of the faulty product are considered to be liable until it is established who was indeed at fault.

Developments of Tort Law in India

In ancient Hindu law the Sanskrit word “jimna” meant crooked or twisted and was considered equivalent to tort which meant fraudulent act .however under the Hindu law and Muslim law, tort had a much narrower concept under than in English law. The present law of torts in India is mainly based on the English law of tort which itself is based on the common law of England. However, the Indian courts before applying any rule of English law can see whether it is suited to Indian society and circumstances. The application of the English law in India has therefore been selective[5] .

Common law was first applied in Calcutta, Bombay, and madras British court of India in the 18th century where the court was required to act according to justice, equity, and good conscience to suits the need of Indian society.

 Justice Bhagwati in M.C. Mehta v. Union of India[6] case observed that

“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our jurisprudence.”[7]

“It has also been held that section 9 of the code of civil procedure, which enables a civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the law torts as principles of justice, equity & good conscience.[8] it is based on the maxim “Ubi jus ibi remedium” ie where there is right there is the remedy 

General defenses available to the defendant

  1. Volenti non-fit injuria: it means voluntarily taking risks. It is a situation where a person consent to inflict harm upon himself. In this case, he has no remedy in tort.

For example; if you invite someone, you cannot sue them for trespass;

There are two essential elements of this exception :

  • Plaintiff knows the risk.
  • Ha has voluntarily agreed to suffer the harm.

In the case  Padmavati v. Dugganaika[9], where the plaintiff himself took a lift from a jeep driver and later on suffered injuries or losses due to accident, it was held that neither the driver nor the master is liable as it was a sheer accident and the plaintiff himself consented for the risk.he will not be entitled to pay any compensation.

  • Plaintiff’s fault: it means the situation where the action of the plaintiff is unlawful and he is under a fault and cannot claim compensation.

In pointing v. Noakes[10], the plaintiff horse entered into the defendant’s land and died after eating the poisonous leaves of a tree.

  • Inevitable accident: it means an unexpected injury due to an accident that could not have been foreseen and be avoided despite reasonable care on the part of the defendant.

In the case of Stanley v. Powell,[11] the defendant fires a bullet from his gun to shoot a bird that glanced off an oak tree and injured the plaintiff. It was held that the injury was due to an accident and thus the defendant was not liable.

  • Private defense: the law permits the use of reasonable force to protect one’s personal life and property. There is a condition that the use of force should be justified, if the force applied is unreasonable then the defense is not available to the defendant.

In the case ilot v. Wilkes[12] where the trespasser is hit by the spring gun, it was held that he is not entitled to recover the compensation as he had a gun, there having notice of existing danger.

  • Act of God: the injury here caused by the plaintiff is due to the natural force which is beyond the control of human being. The occurrence of an event must be extraordinary and not one which could be anticipated and reasonably guided against.

In the case of Nichols v. Marshland,[13] the defendant created artificial lakes on his land which destroyed the property of the plaintiff. It was held that the defendant is not liable since there was an overflow of water because of extraordinary rainfall which could not be anticipated. Nevertheless, if the rainfall happened to be not an extraordinary nature then the defense under the act of God is not available to the defendant (kallulal v. Hemchand)[14].

  • Necessity: an act causing damage, if done under the necessity to prevent a greater evil or harm is not actionable even the damage is caused intentionally.

In Cope v. Sharpe,[15] the defendant entered into the plaintiff’s land to prevent the spread of the fire which was considered necessary to save from imminent danger, and hence the defendant cannot be held liable.

  • Statutory authority: any damage resulting from an act which the legislature authorizes or directs to be done is not actionable even if would otherwise be a tort.

For example diversion of stream or river or construction of roads, dams, bridges by state (govt.) Causing damage to the plaintiff’s land or causing a nuisance in surrounding does not amount to any offense.

In Hammersmith Rail Co. V. Brand[16] , the value of the plaintiff property was depreciated due to noise, smoke & vibration caused by the running of trains constructed under statutory authority. Hence it was held non- actionable.

Tort Remedies

The question of remedies arises whenever a tort has been committed or is being committed,.

There are two principal remedies in tort law.

  1. Judicial remedies: these are the remedies that are provided by the courts of law to an aggrieved party.
  2. Extra-judicial remedies: if the injured party takes the law in their hand the remedies are called extra-judicial remedies.

Judicial remedies are of two main types

  • Damages
  • Injunction


Damages or legal damages are the predominant remedies in a cause of action for torts .the defendant is entitled to pay the amount to the plaintiff to bring them back in a  position in which they were before the tort had taken place. This amount is paid to an aggrieved party to help them recover the loss they have suffered. The word “damages” should not be confused with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.


Other than an award of damages, the main remedy is the injunction. An injunction is an order passed by the court requiring the defendant to desist from some wrongful course of conduct. In some areas—e.g., nuisance and economic tort, an injunction is considered as a dominant remedy. This may be because the harm caused by such torts is intensive.

According to section 37 of the act, there are two types of injunctions–i:e temporary and permanent[17].

Extra-Judicial Remedies

When a person can lawfully remedy himself without the court’s intervention, the remedies are called extra-judicial remedies. In this, the parties take the law in their own hands. For example,  if a trespass into b’s property. B has the right to use reasonable force to remove him from his property and re-enter himself

Also in case of the nuisance, either private or public, the injured party is entitled to remove the object causing a nuisance

Present Applicability of Torts in India

The first thing which is needed is to understand the evolution and present condition of tort law in India, India is not the only country where we try to highlight the importance and effectiveness of tort law and its implementation of protecting an individual’s civil rights. The tort law has been grown and tremendously increased in a progressive country like the USA, UK etc but in India, it has yet to develop and adopt a well profound and subtle codified legislation covering all the aspects of tort this era where people are more aware of their civil rights, they are expected to act more in a civilized manner, as rights and duties are two flip sides of a coin. Any disparity from respecting another individual’s civil rights leads to some consequence. The present law of torts in India is still molding on the pre-independent British model which is itself based on the common law principles of England. Indian tort law is still developing and mostly dependant on the judicial interpretation. In India, the concept, and principles of tortuous liabilities have been incorporated in crude form in various legislations.


A  tort is a branch of law that helps to restore the victim to his original position when there is an infringement of his civil rights irrespective of whether the actual injury was caused to him or not.  The situation of the law of tort in India is not so well as many people are still not aware of the rights and duties that they possess which is because there is a lack of awareness among the people .on one hand where the countries with developed legal systems have well and sound codified laws to remove any kind of uncertainty and provide a subtle ground for tort claims making it as one of the favored branch of civil laws .in India, on contrary, it is still emerging and the fact that the law of torts is still uncodified and is a direct derivative of the common law of England makes it less likely to be adaptable in certain cases. However, now it has been adapted to some extent.


  1. What is the meaning of tort law and how it has been originated?
  2. What are the main elements to constitute tort law?
  3. What is the objective behind tort law?
  4. What is the present application of torts in India?


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