Wrong and privation of right

76.  The word “wrong” in ordinary legal language means and signifies “privation of right’’. An act is wrongful if it infringes the legal right of another, and “actionable” means nothing else than that it affords grounds for action in law. ‘Ordinarily, the word “injury” is used in the same sense of actionable wrong, while “damage” in contrast with injury means loss or harm occurring in fact whether actionable as injury or not. Vide the observation of Viscount Simon in Crofter etc. Co. Ltd. v. Veiteh, (1942) A.C. 435, (111 L.J.P.C. 17). In the English law “tort” is a species of civil injury and so is a breach of contract; but it is not quite correct to say that the two together exhaust all forms of actionable wrongs known to English law. It is true that a tort is often described as wrong independent of contract. As a legal definition this description as I shall show presently, is not quite accurate and unless taken with certain limitations is apt to be misleading.

77.   It is well known that in England the principles of modern law of contract and tort emerged solely out of the intricacies of the old “Forms of Action” under which they lay buried for ages. The injuries which in modern law are described as torts were remedied in early time by certain writs, known as writs of trespass and trespass on the Case. The latter was more elastic than the former and was capable of being adapted to new circumstances and to new types of injuries. There was no clear line of demarcation in those days between contractual and tortious liability and in fact the action of “assumpsit’’ which was the method of enforcing simple contracts was a variety of action on the case and was made use of for recovery of compensation from a party who failed to perform his agreement on the ground that such failure amounted to a wrong in the nature of deceit:vide Pollock on Contract, 12th Edition, p. 111; Winfield on Tort p. 3-4 (4th Edition).

78.   When the principles of substantive law gradually extricated themselves from the entanglements of formalistic procedure, a distinction was drawn between liability for breach of contract and that for tort. In a breach of contract the right violated owes its origin to the agreement of the parties while in tort the right infringed is one created by the general law of the land. From about the middle of the 19th century the assumption current in England was that all civil causes of action must be founded either on contract or on tort and all injuries which were not breaches of contract would come under the category of torts. This assumption as, Sir Frederick Pollock observes, has no historical foundation to rest upon:vide Pollock’s Article on Tort, Encyclo. Brit. Vol. 22, p. 307. In 1852, the Common Law of Procedure Act was passed and a tort was described in the Act as “a wrong independent of contract ‘. It cannot be denied that this mode of expression became very common in legal parlance; but as more than one modern writer of the law of torts have pointed out, the words in such description would have to be interpreted in a particular way and with certain limitations; taken literally it would not be a correct statement of law.

79.  It has been observed by Underhill in his “Law of Torts” that a description like this would be accurate in law if the word “wrong” is taken in the restricted and technical sense as “equivalent to violation of a right recognised and enforced by law by means of an action for damages”. Taken in this form, the definition though it gives no clue as to what constitutes a wrong, certainly does lay stress on the essential characteristic of a tort viz., that the appropriate remedy for it is an action for damages:vide Underhill’s Law of Torts, 16th Edn., p. 4. It is really this characteristic that differentiates a tort from other forms of civil injury or actionable wrong even though the latter are unconnected with any contract. There may be other remedies besides damages available to the plaintiff against a tortfeasor in the shape of restitution, injunction etc., but no “civil injury” as Salmond observes “can be classed as tort unless the appropriate remedy for it is an action for damages. Such an action is an essential characteristic of every true tort.” vide Salmand’s Law of Tort, 10th Edn. pp. 7 and 8. Other remedies like injunction or restitution can be claimed by the plaintiff but it is solely by virtue of a right to damage that the wrong complained of can be regarded as a tort. By way of illustration, the author points out that a public nuisance is not to be deemed a tort, because the civil remedy by way of injunction may be obtained at the suit of the Attorney-General. A refusal to perform a statutory duty is not a tort if the remedy is by way of mandamus. Nor would any wrong be regarded as a tort if the remedy is not an action for unliquidated damages but for a liquidated sum of money. A breach of trust is certainly an actionable wrong independent of contract and the beneficiaries can claim compensation if the trustee has misappropriated trust property; but as the claim cannot be for unliquidated damages:it is not regarded as a tort:vide Winfield’s Law of Tort, p. 11. According to Salmond, the reason for this exclusion is purely historical as a breach of trust or any other equitable obligation was considered to be within the special jurisdiction of equity Courts. It is interesting to observe that although the difference between equitable and common law jurisdiction is not existent at the present day, the old rule is still; applied to demarcate the boundary of the law of torts in English Common law.

  1. Thus tort is a civil injury other than a breach of contract which is capable of sustaining an action for unliquidated damages in a Court of law. If the appropriate remedy is not a claim for unliquidated damages but for injunction or some other relief, it would not rank as a tort though all the same it would be an actionable wrong.

81.  By way of illustration I may refer to the case of Halsey v. Brotherhood, (1880) 15 ch. D. 514, which was decided by Sir George Jessel. Both the plaintiff and defendant in this case were engineers and held patents for the manufacture of certain types of engines. The plaintiff brought an action against the defendant alleging that the latter had threatened to bring legal proceedings against several persons who were actual or intending purchasers of engines from the plaintiff asserting that the engines manufactured by the plaintiff were infringements of the defendant’s patent. There was a claim for damages and also for injunction. It was held by Sir George Jessel that the plaintiff could not claim damages on the basis of slander of title, as he nowhere alleged that the defendant’s statements or representations were not bona fide. But even though the statements had been made in good faith, the plaintiff would be entitled to an injunction against the defendant if he succeeded in proving that the latter’s allegations of infringement were not true. As no proper case for injunction on this basis was made in the claim, the action was dismissed; but liberty was given to the plaintiff to bring an action in the proper form claiming an injunction to restrain the defendant from threatening the plaintiff’s customer. This threat to customers was thus held to be an actionable wrong but as the remedy was injunction and not damages, it was not a tort in the legal sense of the term.

The State of Tripura Versus The Province of East Bengal –AIR 1951 SC 23 : (1951) SCR 1