Legal Article

Elements of tort

By - Meghna

Abstract:

Law of tort is a common law legal system which deals with civil wrongs in the society. Tort is derived from a Latin term ‘tortum’ which means ‘to twist’ and on other hand it means twisted, crooked or unlawful. It is equivalent to English term ‘wrong’. Tort is a civil wrong which is committed by a wrongdoer to another person. Law ensures equality in duties of the members of the society and person breach that duty then he has committed a wrongful act.

Similar to breach of duty in civil wrong that is breach of contract and breach of duty in criminal law, we have breach of duty in law of tort, for example violation of duty to injure a person’s reputation results in defamation in torts.

Definition’s:

Tort means a civil wrong which is not exclusively a breach of contract or breach of trust" —S. 2(m), the Limitation Act, 1963.

“It 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”. —Salmond.

“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”. —Winfield.

Elements of tort:

An act which infringes a legal right is wrongful act but not every wrongful act is tort, for a

wrongful act to be a tort it should have following elements,1

(1) There must be a wrongful act committed by a person.

(2) The wrongful act should give rise to legal damage or actual damage.

(3) The damage caused should lead to legal remedy for the damages.

(4) There must be a wrongful act committed by a person

The act committed should be legally wrongful as regarded to the party complaining, that is it

must affect a person in affect his legal right, merely that it will, however directly, do him harm in his interest is not enough.2

An act would prima facie not be tortious but later on realized to be tortious, if it infringes a legal right of a person. For instance, a person crosses the defendants farm and goes to the main road and is been doing that for twenty years then he gains and legal right on the land which he is being enjoying.

According to Austin, as a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They are sub-divided into private rights and public rights.

Private rights are those rights which belong to a particular person to exclusion of the world.

Example; right to reputation, rights of property etc.

Public rights are those rights that are available to the member of the state or society.

Example; right to vote, right to liberty and freedom etc.

To every right there corresponds an obligation or duty. If the right is legal, so is the obligation; if the right is contingent, imaginary, or moral, so is the obligation. A right in its main aspect consists in doing something, or receiving and accepting something. So, an obligation consists in performing some act or in refraining from performing an act.3 Liability for a tort arises when the wrongful act complained will amount to either of an infringement of a legal private right or a breach or violation of a legal duty.

Case laws: -

1: Municipal Corporation of Delhi v. Subhagwanti: - the Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of a number of persons, the Corporation would be liable for its omission to take care in the matter.4

2: Glasgow Corp. v. Taylor: - the public park handling corporation was held liable for not fencing the poisonous tree which had poisonous fruits and led to death of the child who eat the fruit. 5

2: the wrongful act should give rise to legal damage or actual damage to establish that there was tort committed against the plaintiff, he has to prove that he has undergone a legal damage. In other words, it has got to be proved that there was a wrongful act—an act or omission— causing breach of a legal duty or the violation of a legal right vested in the plaintiff.6

Damage means the loss incurred by a person because the wrongful act done against one. From the point of view of presumption of damage, rights are classified into

(1) absolute rights

(2) qualified rights

• Absolute right is violated the law conclusively presumes damage the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage. Violation of absolute right is, therefore, actionable per se, i.e., without proof of any damage.

• Qualified rights, there is no presumption of legal damage and the violation of such rights is actionable only on proof of actual or special damage. In other words, in case of an absolute right, the injury or wrong, i.e., the tortious action, is complete the moment the right is violated irrespective of whether it is accompanied by any actual damage, whereas in case of a qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage.

The real significance of legal damage is illustrated by two maxims, namely,

Injuria sine damno and damnum sine injuria.

➔ Injuria sine damno: the infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. there are two types of actionable per se i.e., one which can be prove without proof of the damage caused it is presumed. In Ashby v. White the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless it was held that an act ion lay. In this case the returning officer had acted maliciously. Where, therefore, a returning officer, without any malice or any improper motive, in exercising his judgment, honestly refused to receive the vote of a person entitled to vote at an election, it was held that no action can be laid.8

Damnum sine injuria:

Actual and substantial loss without infringement of any legal right, no act ion lies. Mere loss is money or money’s worth does not of itself constitute a tort. There are many acts which are harmful but not wrongful. Thus, if I have a mill, and my neighbor sets up another mill, and thereby the profits of my mill fall off, I cannot bring an action against him; and yet I have suffered damage. But if a miller hinders the water from running to my mill, or causes any other like nuisance, I shall have such act ion as the law gives.9

3: the damage caused should lead to legal remedy for the damages.

The law of torts developed the maxim ubi jus ibi remedium (there is no wrong without a remedy). Where jus signifies legal authority to do something and remedium as right given by law to recover for the damage suffered. There is no remedy for moral or political wrong that is provided but only for a legal wrong. There is no law without remedies.10

The real significance of legal damage is illustrated by two maxims, namely, injuria sine damno and damnum sine injuria.

Injuria sine damno:

The infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. there are two types of actionable per se i.e., one which can be prove without proof of the damage caused it is presumed. In Ashby v. White the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless it was held that an act ion lay. In this case the returning officer had acted maliciously. Where, therefore, a returning officer, without any malice or any improper motive, in exercising his judgment, honestly refused to receive the vote of a person entitled to vote at an

election, it was held that no action can be laid.

Damnum sine injuria:

Actual and substantial loss without infringement of any legal right, no act ion lies. Mere loss in money or money’s worth does not of itself constitute a tort. There are many acts which are harmful but not wrongful. Thus, if I have a mill, and my neighbour sets up another mill, and thereby the profits of my mill fall off, I cannot bring an action against him; and yet I have suffered damage. But if a miller hinders the water from running to my mill, or causes any other like nuisance, I shall have such action as the law gives the damage caused should lead to legal remedy for the damages.

The law of torts developed the maxim ubi jus ibi remedium (there is no wrong without a remedy). Where jus signifies legal authority to do something and remedium as right given by law to recover for the damage suffered. There is no remedy for moral or political wrong that is provided but only for a legal wrong. There is no law without remedies.

General Essentials of tort:

1: - Act and omission: - for a constituting as a tort there must be wrongful act committed. There must be a commission or omission. Generally, omission is not actionable but it is exceptionally. When there is act or omission it creates liability.

2: - Voluntary and Involuntary acts: - a self – willed act is called voluntary act like encroachment of business, is voluntary but encroachment of survival is involuntary.

3: - Malice: - malice is not essential condition in tort for maintenance of action. There are two types of malice i.e., malice in law and malice in fact.

4: - Intention: - the obligation to make damages caused by a tort arises from the fault and not the intention.

5: - Malfeasance: - means wrong doing.

Misfeasance: - to mis do an act.

Non-feasance: - failure or omission to perform an act which one is obligated to.

6: - Fault: - lability arises due to something done by a man which led to violation of right of other man.

Conclusion:

Law of tort is similar to many other legal systems but it is different in few aspects. Though

there is debate on liability in torts, it has stronger roots. It enables one to fight for he’s rights

which are violated against person who owes a duty. Law torts is uncodified law but has great

principles which are enough to prove liability under civil wrong.