Conditions or essential elements of Tort

Conditions or essential elements of tort


A Tort can be defined as “A civil wrong which is redressible by an action for un-liquidated damages and which are not merely a breach of contract or breach of trust”.
In simple words, it is a civil wrong, independent of contract, giving rise to civil remedy for which compensation is recoverable. It is an act or omission of an act that affect the person’s legal right.

Essentials of Tort

Every wrongful act do not constitute a Tort. To constitute a Tort it is necessary that all the essential elements should be satisfied.
The essential elements are

  1. There must be an act performed or omission of an act on the part of defendant.
  2. Act performed or omission of an act should result in the legal damage (injuria) i.e., the violation of legal right vested with plaintiff.

Act performed or omission of an Act

  • In order to make a person liable in tort, it is necessary that he must have done a wrongful act that he was not expected to do or omitted to do something that he was supposed to do.
  • When there is an act done by the person which is considered as wrongful act in the eyes of law then the person would be liable in torts.
    • Illustration – ‘A’ publish a defamatory statement against ‘B’ in public, in this case A would be held liable in tort under defamation.
  • Similarly, when there is an omission of an act done by the person which he was supposed to do as that act was his legal duty to perform, then that person would be held liable in torts.
    • Illustration – ‘A’ fails to do proper fencing around a poisonous tree to keep the children away from it. It was the legal duty of A towards the same to which he fails to perform. A child climbs the tree, and plucked the fruit from that poisonous tree, eat it and die. ‘A’ would be liable for such omission in torts.

Note – If there is a mere social or moral wrong then that would not be considered under torts. For example – a person would not be held liable if he couldn’t help a starving man as it was his moral or social duty to help them, unless it could be proved that the person was legally bound to help such person.

Legal Damage

  • It is important that plaintiff must show that there is a wrongful act or omission of an act that results in the breach of legal duty or the violation of right vested in the plaintiff. Unless there has been the violation of legal right, there can be no action under law of torts.
  • If there is no violation of any legal right then it is not actionable in torts no matter the plaintiff suffered any loss or not.
  • The same can be expressed through two legal maxims – Injuria sine damnum and Damnum sine injuria.

Injuria sine Damnum

This legal maxim means violation of legal right without causing harm, damage or loss to plaintiff. It is actionable without the proof of any damage or harm caused to plaintiff. The only thing that is required to be proved is that there is the violation of legal right that vested with plaintiff.

Damnum sine Injuria

This legal maxim means damage without the violation of any legal right of plaintiff. If the act or the omission of the act causing damage to the plaintiff but there is no violation of any legal right of that person then the same is not actionable under the law of torts although the plaintiff suffered injuries.

Case studies –

Ashby v. White – In this case, the plaintiff was a qualified voter in parliamentary elections but the defendant, the returning officer, wrongfully refused to take the plaintiff vote. Although no loss was suffered by the plaintiff because the candidate for whom he wanted to vote won the elections. It was held that defendant would be liable under torts as there was the violation of legal right that vested with plaintiff.

Gloucester Grammar school case – In this case, the defendant (the school master) set up a rival school near the plaintiff school. As a result the plaintiff had to reduce the school fees from 40 penace to 12 penace in order to avoid the decrease of the no. students. By this plaintiff suffered damages and loss, therefore, bring an action against the defendant. It was held that although plaintiff had suffered the injuries but since there is no violation of any legal right that vested with plaintiff, therefore, defendant was not liable for the damages suffered by the plaintiff.

Ushaben v. BhagyaLaxmi Chitra Mandir – In this case, the plaintiff sued for the permanent injunction against defendant to restrain them from exhibiting the film name ‘Jai Santoshi Maa’. It was contended that the film hurt the plaintiff’s religious view as Goddess Parvati, saraswati and Laxmi were depicted as jealous and were ridiculed. It was observed that religious hurt is not been recognized as legal wrong. Moreover, no individual can dominate their religion over the other person and cannot restrain any person to do the lawful act. Since, there was no violation of legal right that vested with plaintiff, therefore, the request of injunction was rejected and defendant was not held liable for any kind of harm suffered by the plaintiff.

Bhim Singh v. State of Jammu & Kashmir – In this case, the petitioner, the M.L.A of J&K was wrongfully detained by the police while he was going to attend his assembly session. Moreover, he was also not produced before the magistrate within the reasonable period. As a result, he was deprived of his constitutional right to attend the assembly meeting. There was also the violation of his fundamental right under Article 21 of Indian Constitution. By the time petition was decided by Supreme Court and Bhim Singh has been released, but by the way of consequential relief exemplary damages amounting to Rs.50,000/- were also awarded to him.

Note – If the court feels that there is violation of legal right owing to the mischievous behavior and malicious act, then the court may grant even exemplary damages. This decision is purely up to the court.

Author: Navya Agarwal,
College name - Cpj college of higher studies and school of law and year - 2nd / Student by profession

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