Concepts and Essentials of Torts

Introduction
A tort can be defined as a wrong independent of contract, giving rise to a civil remedy, for which
compensation can be recovered.

The etymological meaning of the word tort is twisted. It originated from the Latin term tortum.

According to Salmond, “A 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 breach of trust or
other merely equitable obligation.”

Winfield on the other hand opined, “Tortuous liability arises from the breach of duty primarily
fixed by law, this duty is towards persons generally and its breach is redressable by an action for
unliquidated damages”

Essential Elements of Torts

The essential elements of torts are as follows:

 Wrongful Act- When a person is under some legal duty, and he fails to perform it
causing some loss to the victim, the person has committed a wrongful act. A wrongful
act invades the following private rights of the victim- Good Reputation, Bodily safety and
Legal rights.
 Legal Damage- There is a difference between legal damage and actual damage. In
torts, injuria sine damno is actionable but damnum sine injuria isn’t. Injuria sine
damno means an infringement of a legal right even if there is no actual
damage. Damnum sine injuria means damage without injury. In Ashby v. White[3], the
plaintiff was prevented from exercising her right to vote. It was held that the plaintiff was
entitled to damages. In the Gloucester Grammar School Case, a rival school was set up
near that of the plaintiff. It was held that the plaintiff could not get compensation as there
was no legal injury.
 Legal Remedy- The damage in tort should be actionable. There cannot be a tort if there
is no legal remedy.

Some General Elements of Torts

 Act or Omission- There should be a wrongful act in order to constitute tort. It can be an
act of omission or that of commission. They should not be beyond human control.
 Voluntary or Involuntary- The wrongful act can be voluntary or involuntary.
 Intention, Motive, Negligence and Recklessness- The act may have an intention or
motive or may arise due to negligence or recklessness.
  Malice– Malice isn’t essential in all kinds of torts. It is essential in the following-
defamation, malicious prosecution, malicious damage to property, slander,etc.
 Malfeasance, Misfeasance, Nonfeasance- Malfeasance means commission of an
unlawful act. Misfeasance means performing a lawful act in a wrong manner.
Nonfeasance means failure to perform an act where there was an obligation to perform it.
 Fault- A fault which violates the right of a person gives rise to tort.

Existence of a Duty to Exercise Care

The law of torts imposes an obligation on every individual to exercise a reasonable level of care
when engaging in activities that could potentially cause harm to others. To pursue a legal case, it
is necessary to establish that the tortfeasor (the person responsible for the tort) owed a duty of
care to the injured party and that this duty was breached. The duty of care is imposed by law and
does not require a direct relationship between the tortfeasor and the injured party.

Wrongful Commission or Omission of an Act

For an act to be recognised as wrongful, it must be defined as such by law. Violating a legal
provision renders an act unlawful. It is important to note that a moral wrong does not necessarily
equate to a legal wrong. Merely being morally wrong is insufficient to qualify as legal
wrongdoing. An act is considered unlawful only if it contravenes the law, regardless of its moral
implications. Furthermore, wrongdoing must result in actual harm or legal injury to another
person. The following cases exemplify this requirement:

Glasgow Corporation v. Taylor (1992)

In this case, a corporation failed to erect proper fencing to keep children away from a poisonous
tree. As a result, a child plucked and consumed fruits from the poisonous tree and died. The
corporation could be held liable for this omission.

General Cleaning Corporation Ltd v. Christmas (1953)

In this case, an employer failed to provide a safety belt for a safe system of work, resulting in
consequences arising from this omission.

Actual Harm or Legal Harm

For a tort claim to arise and for the tortfeasor to be held liable, the claimant must have suffered
actual pain or loss as a result of the wrongdoing, or there must have been a violation of their
legal rights, with or without resulting damage.

Two maxims, injuria sine damno and damnum sine injuria, encompass the various categories of
harm and/or injury covered by this crucial element of a tort.

Injuria Sine Damno

The maxim “injuria sine damno” describes an injury without damage, which is actionable under
tort law. It occurs when a person experiences a legal injury without actual loss, meaning their
legal right has been infringed by another individual. It signifies a violation of an absolute right
without the need for actual harm.

An illustrative example of this maxim is the landmark case of Ashby v. White (1703) 92 ER
126, where Mr. Ashby, the plaintiff, was prevented from voting by Mr. White, the constable.
This rule is based on the ancient maxim “Ubi jus ibi remedium,” meaning “where there is a right,
there will be a remedy.”

The plaintiff was a qualified voter in a parliamentary election. The defendant, a returning officer,
wrongfully refused to accept the plaintiff’s vote. Although the plaintiff suffered no damage since
the candidate he wished to vote for had already won the election, the defendants were still held
liable. It was concluded that damage is not limited to pecuniary loss, as injury implies damage.
Therefore, when a person’s rights are hindered, they are entitled to remedies.

In another case from India, Bhim Singh v. State of Jammu and Kashmir, the plaintiff, who
was a member of parliament (MP), was denied entry into the premises of the Assembly election
by a police constable, thereby infringing upon his legal rights.

Damnum Sine Injuria

This maxim is the opposite of the previous one. It refers to damage without injury. In this case,
the party experiences actual physical or moral loss, but there is no infringement of their legal
rights. It refers to an actual and substantial loss suffered by a party without any violation of their
legal rights. In such instances, the plaintiff has no cause of action since no legal rights have been
transgressed.

An example of damnum sine injuria is the case of Gloucester Grammar School, where the
defendant established a school in the same neighbourhood as the plaintiff’s school and even
lowered the fees. This was not considered a tort case because the plaintiff suffered only a
financial loss, and none of their legal rights were breached.

Legal Remedy
The law of torts provides specific legal remedies to injured parties when their rights are violated.
These remedies can include monetary compensation, restitution of specific property, and court-
ordered injunctions.

The Court assesses various factors of liability by applying tests such as directness and
foreseeability to determine the extent of the damage suffered and whether it is too remote. Only
after evaluating these factors will the Court provide relief to the claimant.

Difference Between Tort and Contract

A tort is distinguished from a contract in the following manner-

 Free consent is necessary to give rise to a contract. A tort is inflicted without consent.
  There is no doctrine of privity in tort. It is essential in a contract, and no third party can
make decisions regarding a contract.
 Tort is a violation of right in rem( right against the world at large) and breach of contract
is an infringement of right in personam (right against a person or a body).
 Motive is often taken into consideration in Tort but not in a contract.
 The measure of damages in tort is not strictly limited. For a breach of contract, the
measure of damages is generally more or less determined by stipulations of the
contracting parties.

Difference Between Tort and Crime

A tort is distinguished from a crime in the following manner-

 A tort affects the private rights of a person. A crime on the other hand affects the whole
society.
 In tort, compensation is recovered from the wrongdoer. A person committing a crime is
punished by the State.
 In tort, action is brought in by the injured party. In crime, proceedings are conducted by
the State.

Conclusion
A tort defines a civil wrong and gives rise to civil proceedings. It involves infringement of the
right of a person and the person is compensated by the wrongdoer. Consisting of four essential
elements: duty, wrongful act, injury, and remedy. To pursue damages for a tort, all four essential
of torts must be proven. If any of these elements is missing, the tort cannot be established, and
damages cannot be awarded.