What is Tort? Meaning | Definition | Elements of Tort | characteristics | explained by Ambition Law Institute

What is Tort? Meaning | Definition | Elements of Tort | characteristics | explained by Ambition Law Institute

What is Tort? Meaning | Definition | Elements of Tort | characteristics | explained by Ambition Law Institute

What is Tort?

Elements to study:-

  • Introduction
  • Meaning
  • Definition
  • Essential elements
  • Nature and characteristics
  • Law of tort or Law of torts


The Law of Torts focuses on safeguarding a range of societal interests. Its fundamental purpose is to protect these interests by redistributing losses among the involved parties. This involves compelling the individual responsible for infringing upon such interests to provide monetary compensation as sought by the aggrieved party. The Law of Torts is a legal branch that has evolved through judicial proceedings. Judicial process essentially entails the judiciary evaluating and interpreting social events.

A significant portion of Tort law is yet to be codified, both in England and India. In 1886, efforts were made in India to codify civil wrongs, with Sir Frederick Pollock drafting a bill titled “The Indian Civil Wrongs Bill.” However, the bill did not pass into law, as the Government of India displayed no interest in codifying this legal branch since then.


The term ‘Tort’ originates from the Latin word ‘tortum,’ signifying ‘to twist.’ Consequently, it denotes behaviour that is not legal but rather distorted, crooked, or unlawful.  The individual responsible for committing the tort is referred to as the ‘tort person,’ and their wrongdoing is termed a ‘tortuous act.’

In general terms, every citizen behaves responsibly and performs their duties towards society in a straightforward manner. However, when someone does not behave accordingly or chooses a crooked path, they have committed a tort.

A tort is a civil wrong, signifying any individual who inadvertently inflicts harm, such as death, accidents, nervous shock, or other consequential losses that cause suffering to another person. Therefore, a person who has experienced damage can seek compensation for their injury from the individual responsible for the loss under tort law.

A common example of a tort is a car accident where one driver fails to obey traffic signals and collides with another vehicle, causing injury to the occupants. In this scenario, the driver who disregarded traffic rules and caused harm may be held liable for negligence under tort law. The injured party can then seek compensation for medical expenses, property damage, and other losses resulting from the accident.

Tort law determines whether the accused party can be held responsible for the inflicted injury and establishes the amount of compensation entitled to the injured party.


Tort law revolves around the violation of common law duties, particularly the infringement of private rights such as safety, reputation, or property. When an individual causes harm by breaching these rights, the injured party is entitled to seek compensation from the wrongdoer. However, when harm primarily affects the public, permitting numerous individual lawsuits could lead to practical challenges. Consequently, the legal system often limits private lawsuits for public wrongs unless there is a specific and significant harm inflicted on an individual.

It’s crucial to distinguish tort from the breach of trust or other equitable obligations, as these may result in a civil action but fall outside the scope of tort. In the context of tort law, a violation occurs when someone neglects a duty associated with a general right, rather than one stemming from personal or family relationships. Breaches of mutual responsibilities between a parent and child or a husband and wife, for instance, are not classified as torts but are viewed as moral duties. Pursuing damages through legal action is generally considered an ineffective remedy for breaches in these personal or familial contexts.

In essence, tort law seeks to address instances where private rights are infringed upon, providing a framework for individuals to seek redress when harmed. The balancing act between safeguarding individual rights and preventing an excessive number of lawsuits for public wrongs shapes the nuanced landscape of tort law, distinguishing it from breaches in personal or family relationships that are primarily considered moral duties rather than legal wrongs with actionable remedies.

Tort is the infringement of a right in rem (i.e., a right available against the whole world) as distinguished from a right in personam (i.e., a right available only against some determinate person or body). As Pollock puts it, a tort is the violation of that general duty which all members of a civilized community owe towards their neighbours not to do them harm without lawful cause or excuse.


Several jurists or thinkers have offered definitions of tort. Here are a few examples-

  1. Salmond :

He said, “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”

  1. Clerk & Lindsell :

“A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action.”

  1. Sir Frederick Pollock :

“The law of torts in civil wrong is a collective name for the rules governing many species of liability which, although their subject matter is wide and varied have certain broad features in common, enforced by the same kind of legal process and are subject to similar exceptions.”

  1. Fraser :

It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.

  1. Lord Denning :

“The province of tort is to allocate responsibility for injurious conduct”.

  1. Winfield :

Winfield defined tortious liability in the following words; “Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages”.

  1. Sec. 2(m) of the Limitation Act, 1963 :

“Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

(The definition of Tort under the Limitation Act, 1963 is also residuary.)


To constitute a tort, it is essential that the following three conditions must be satisfied :-

  1. Wrongful act or Omission:

To be held legally accountable, an individual must have engaged in a wrongful act or omission, essentially violating a duty prescribed by law. In legal terms, a duty implies a legal constraint or requirement dictating that one should conduct themselves in a manner consistent with how a reasonable person would behave in a comparable situation. A wrongful act or omission can occur through negligence, intention, or even by violating a stringent duty. Whether the action is committed carelessly, purposefully, or in breach of a strict duty, it constitutes the basis for legal culpability.

Municipal Corporation of Delhi Vs. Subhagwanti and Ors., 1966

In this case, the collapse of a Clock Tower in Chandni Chowk, Delhi, owned by the Municipal Corporation, resulted in tragic fatalities. Legal action ensued, with heirs filing suits against the Municipal Corporation, alleging negligence in maintenance. The court found the Municipal Corporation negligent, citing the collapse as evidence. Applying “res ipsa loquitur,” (things speaks for itself) it emphasized the Corporation’s failure, leading to legal consequences and consideration of compensation for affected families.

  1. Legal damage:

It means an invasion or infringement of private legal right (injuria.) Even if the plaintiff has not suffered any loss, still he can succeed if his private legal right is violated. Private legal rights are those rights which vests in a person by virtue of law

Bhim Singh Vs. State of J & K and Ors., 1985

In this case, Shri Bhim Singh, a Member of the Legislative Assembly of Jammu & Kashmir, was arrested and detained in a manner violating his constitutional rights. The police obtained remand orders without producing him before the magistrate. The court observed discrepancies and deliberate actions, indicating misuse of power. Shri Bhim Singh was not produced before the magistrate on multiple occasions, raising concerns about the legality of his detention. The court emphasized the need for respect for personal liberty by law enforcement and concluded that Shri Bhim Singh’s constitutional rights were violated. Although he was no longer in detention, the court awarded him monetary compensation of Rs. 50,000 as exemplary costs for the infringement of his rights.

  1. Legal Remedy :

Tort requires a wrongful act, legal damage, and a legal remedy for a civil action. The absence of any of these elements means no tort has occurred. The Law of Torts is based on the principle “Ubi Jus Ibi Remedium,” signifying that where there is a right, there is a remedy – emphasizing the connection between legal rights and the availability of legal remedies.

Ashby vs. White, 1703

In this case, the plaintiff faced detention and was prevented from casting his vote, despite being eligible to do so. Interestingly, the political party he favored emerged victorious. The court referred to “injuria sine damnum” (damage without injury), emphasizing that even in the absence of any injury, there was a violation of the plaintiff’s legal rights. Chief Justice Holt stated that if the plaintiff has a right, he must have a means to vindicate & maintain it & a remedy for its violation.


  1. It is a civil wrong:

In civil cases, no direct punishment is imposed on the accused as in criminal laws. Instead, the person affected initiates the lawsuit against the alleged wrongdoer. If the accused is found guilty, compensation for unliquidated damages may be awarded later.

  1. Common law action:

It is an uncodified law without specific statutes and relies solely on judicial decisions established by legal precedents.

  1. Infringement of right in rem:

There are two types of rights:

  1. Right to Rem – Right against the whole world (e.g., defamation or accidents).
  2. Right to Personam – Right against particular individuals (e.g., in contracts, parties can only sue each other).

In simple terms, under tort law, one can sue anybody, even if there is no prior relationship.

  1. Right fixed by law:

Tort arises when any law that is established or declared legal by the legislation gets violated.

  1. Remedy:

In tort law, the remedy often involves unliquidated damages. Unliquidated damages refer to compensation or monetary awards that are not predetermined or fixed by a specific amount. Instead, the court determines the appropriate compensation based on the circumstances and the extent of harm suffered by the injured party. The court considers various factors to determine a fair and just amount of compensation for the injured party.


There are two theories in this regard :

  • Is it the Law of Tort, i.e. every wrongful act, for which there is no justification or excuse to be treated as a tort; (Unity theory of Winfield) or
  • Is it the Law of Torts, consisting only of a number of specific wrongs beyond which the liability under this branch of law cannot arise. (Pigeon-hole theory of Salmond).

Winfield, preferred the first of these alternatives and according to him it is the Law of Tort. According to this theory, if I injure my neighbour he can sue me in tort whether the wrong happens to have particular name like assault, battery, deceit, slander, or whether it has no special title at all; and I shall be liable if I cannot prove lawful justification. This theory was propounded by Sir Frederick Pollock in 1987 and was vehemently supported by Winfield.

Salmond, on the other hand, preferred the second alternative and for him, there is no Law of Tort, but there is Law of Torts. The liability under this branch of law arises only when the wrong is covered by any one or the other nominated torts. There is no general principle of liability and if the plaintiff can place the wrong in any one of the pigeon-holes, each containing a labelled tort, he will succeed.

This theory is also known as ‘Pigeon-hole’ theory. If there is no pigeon-hole in which the plaintiff’s case could fit in, the defendant has committed no tort. According to Salmond, “Just as the criminal law consists of a body of rules establishing specific offences so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other there is any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability, and not for me to defend myself by providing that it is within some specific and established rule of justification or excuse”.

Because of the difference in approach, Winfield’s book on the subject is entitled ‘Law of Tort,’ whereas Salmond’s book is entitled ‘Law of Torts’.

Winfield revised his perspective on his theory, asserting that both his and Salmond’s theories held merit. According to Winfield, the first theory is valid when considering the broader and historical aspect of tort law, while the second theory suffices for narrower, practical considerations. In practical terms, focusing on the current state of tort law aligns with the second theory. However, if one takes a broader view, acknowledging the centuries-long growth and ongoing evolution of tort law, the first theory becomes applicable.

It is, thus, a question of approach and looking at the things from a certain angle. Each theory is correct from its own point of view.

Enquire Now

whatsapp-icon Enquire Now Call Now