Essential Elements of Tort

Essential Elements of Tort

A tort is a civil wrong and this is a breach of the duty imposed by law which gives a civil right of action for a remedy not exclusive to any other area of law.

Essential Elements of a tort

There are three essential elements which constitute a tort, they are

  1. Wrongful act or Omission
  2. Duty imposed by law
  3. Legal or actual damage to another person as a result of the wrongful act
  • Wrongful act or Omission

A wrongful act may be committed either morally or legally or both at the same time. A legal wrongful act affects one’s rights. A wrongful act must be one that is recognized by the law and also the act must be a violation of the law. The liability of tort arises when the wrongful act is being done and that infringes the legal right or which breach or violate legal duty.

For example, an act that seems Prima facie innocent based on the first impression may also end up infringing somebody else’s legal right. ‘Innuendo’ means that a statement said by an individual is Prima facie innocent but has a secondary meaning, which harms the reputation of another in the eyes of the public or the person who comes to know about such statement.

 Like if a person is a citizen of India and is prevented from voting by another, no matter if the candidate he was going to vote for, wins, his legal right to vote has been violated.

  • Duty imposed by law

The duty imposed by law is a duty which is legally enforceable in the Indian courts. Hence every individual has a duty of care which requires a standard of reasonable care that he could observe as not being harmful towards others.

  • Legal or actual damage

This is one of the most important ingredients in constituting a tort. In this, the plaintiff has to prove that the defendant has done a wrongful act or omission against him which has resulted in the breach of a legal duty or the violation of a legal right. Therefore for this, there must be a violation of a legal right of a person and in case if there is no violation of legal right then there can be no action taken under the law of torts. But in case if there is a violation of legal right then the same is actionable whether the plaintiff suffered actual loss or not. This is expressed by the maxim, “Injuria sine damno” where ‘injuria means infringement of the legal right of a person and ‘damnum’ stands for substantial harm which creates loss or damage to that individual and the term ‘sine’ means without. However, if there is no violation of a legal right, no action can lie in a court despite the loss, harm, or damage to the plaintiff caused by the defendant.

Distinction between Damage and Damages

Damage indicates the loss (harm, injury) suffered as a consequence of a tort or breach of contract.  Damages are monetary compensation that a civil defendant has to pay to the claimant as reparation for damages caused by tort or breach of contract.  
The primary function of the law of torts is to compensate victims for damage sufferedThe claimant seeks damages for negligence.

Legal Damage; Literal meaning of legal damage is to affect injuriously. The term ‘damage’, while they may look similar, they have different meanings and are significantly distinct from each other; “damages” refers to the compensation sought for, while “damage” refers to actual loss or injury.

Illustration; A runs a school which was a very successful school, after 1 year another school opens up nearby, and due to that, A suffered heavy losses in the business. Here we can see that A has suffered damage in terms of business value so he cannot sue the competitor school for any kind of damages.

Principles in torts
  1. Damnum sine injuria
  2. Injuria sine damnum
Damnum sine injuria

It means damage without injury. In simple words, it means causing damage howsoever substantial to another person is not actionable in law unless there is also a violation of legal rights. Therefore, there will be no compensation for the plaintiff unless there is also a violation of legal rights.

Some case laws of Damnum sine injuria are-

Gloucester Grammar School Case–In this case, the defendant set up a rival school near the plaintiff’s school due to which the plaintiff suffered loss as his student started joining the defendant’s school. Due to this competition, the plaintiff has to lower down his fees. So the plaintiff sued the defendant to seek compensation but no compensation was given as there was no violation of his legal rights.

Ushaben v. Bhagya Laksmi Chitra Mandir– In this case, the plaintiff sued the defendants for permanent injunction as the movie “JAI SANTOSHI MAA” was hurting the religious sentiments as Goddess was depicted as jealous. No compensation was given as there was no violation of the legal right.

Mogul Steamship Co. Ltd v McGregor, Gow & Co-

 All the steamship companies united and drove the plaintiff’s company out of the tea trade company by reducing their freights due to which the plaintiff suffered losses. No compensation was given as the other companies were only doing marketing practices and also there wasn’t any injury to the plaintiff.

Injuria sine damnum

It means injury without damage and without much damage, it is actionable under the law of torts. In this, a person suffers legal damages instead of actual loss i.e. individual right is infringed by some other individual. The simple meaning is that it is an infringement of an absolute private right of a person without having suffered any actual loss.

 Some case laws of Injuria sine damnum

In the landmark case of Ashby v. White, where Mr. Ashby, the plaintiff, was prevented from voting by the constable Mr. White. It was held that his legal right was infringed. This rule is basically based on the old maxim “Ubi jus ibi remedium” which translates to “where there is a right, there will be a remedy.”

In the case of Bhim Singh v. State of J& K, the plaintiff was a Member of the parliament and was not allowed to enter into the premises of the Assembly election by a police constable. It was held that his legal right was infringed.

Distinction between Injuria sine damno and Damnum sine injuria
Injuria sine damnoDamnum sine injuria
No physical damage or an actual loss on the part of the plaintiffActual damage and loss on the part of the plaintiff  
The party suffers from the infringement of their legal rightsThere is no legal right infringement  
Actionable in the courtNot actionable in court  
Deal with the legal wrongsDeal with the moral wrongs  

Also Read: Law of Torts | Nature, Scope and Meaning

Essential Elements of Tort

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