Law of Torts – its Essentials and Nervous Shock

The word tort has come from the Latin word ‘tortum”, which means ‘to twist’. therefore, “tort” means “a behavior which is illegal or unlawful”. It is equal to the English term ‘wrong’. The Law of Torts consists of various torts or wrongful acts whereby the wrongdoer violates some legal right vested in another person. The law urges a duty to respect the legal rights of people in the society and the person making a breach of that duty is said to have done the wrongful act.


Law of Torts is a branch of law controlling the behavior of people in society. The aim is to define individuals’ rights and duties in the light of prevalent standards of reasonable conduct and public conveniences. Its main aim is to provide compensation to the victims. In torts the justice is met by giving compensation for the injured one but in the case of crime the offender is punished.

Definition –

“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

The main idea which is indicated by this definition is –

  1. Tort is a civil wrong and
  2. Every civil wrong is not a tort there are other civil wrongs also.

It has been rightly remarked that ‘A satisfactory definition of Tort is almost certainly an Impossibility.’ Here are some reasons-

  1. Its uncodified (based on case laws).
  2. Procedure grew through a complicated procedure (writs, slow growth of law of torts)
  3. Law of Torts is still growing

Essentials of a Tort –

To do a tort it is important to satisfy the following conditions –

  • There must be some act or omission on the part of the defendant
  • The act or omission should result in legal damage that is violation of a legal right vested in the plaintiff

Let’s see these conditions in detail.

  1. Act or omission

In order to make a person responsible for a tort, he must have done some action which he was not supposed to do, or, he must have omitted something which he was supposed to do. Either an act or an omission which is illegally made, will make a person liable. For example, A publishes a statement defaming another person, or wrongfully detains another person, he can be made liable for, defamation or false imprisonment, as the case may be. Similarly, when there is a legal duty to do some action and a person omits that duty, he can be made liable for such omission. For example, if a corporation, which maintains a public park, fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruits of the poisonous tree and dies, the Corporation would be responsible for such omission.

  1. Legal damage

In order to be successful in an action for tort, the plaintiff has to prove that there was a wrongful act or omission of act which caused breach of the legal duty towards the plaintiff. If there is no breach of duty or right infringement then no action can take under torts. But if there has been violation of a legal right, the same is actionable whether, as a consequence thereof, the plaintiff has suffered any loss or not. This is explained by the following two maxims –

  • Injuria sine damnum The word injuria means violation of a right grant by the law on the plaintiff. Damnum means massive harm, loss or damage in the form of money, health or comfort. If there is such then the plaintiff can go to the court for his right. Ashby v. White’ is a number one case explaining the maxim injuria sine damnum. In this case, the plaintiff succeeded in his action, even though the defendant act did not cause any damage.

If there is no infringement of a legal right, no action can lie even though the defendant’s act has caused some loss or harm or damage to the plaintiff. This is explained by the second maxim-

  • Damnum sine injuria – It means that a damage without the infringement of a legal right which is not actionable in a court of law. The test to know whether the defendant should or should not be liable is not there the plaintiff has suffered any loss or not but the real test is whether any lawful right vested in the plaintiff, has been violated or not. In Ushaben v. Bhagyalaxmi Chitra Mandir, the plaintiffs went to the court for a permanent injunction against the defendants to stop them from presenting the film named “Jai Santoshi Maa”. It was argued that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, and Parvati. It was remarked that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to prevent another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no infringement of a legal right, request of the plaintiff was rejected.

Nervous Shock –

The nervous shock may be caused by words or act of the defendant. It may be caused by some accident due to the defendant’s carelessness or on account of a false statement willfully made or due to intimidation (intentional wrong doing).

For instance, ‘A’ the driver of a car, ‘B’, his friend and “B’s son travelling together. They stopped for petrol and ‘A’ asked ‘B’ to go into the office to pay ‘B’ and his son got out of the car and while ‘B’ was in office, ‘A’ negligently backed the car into ‘B’s son, who was hardly a few yards away in the office, heard the boy’s screams and rushed to help him. He saw the boy injured and suffered nervous shock followed serious illness. ‘B’ can sue the ‘A’ to recover damage for his nervous shock.

The plaintiff could suffer nervous shock by witnessing (seeing or hearing) personal injury (or an accident) or destruction of his property caused by the defendant’s wrongful act.

For example, ‘A’ by way of practical joke, falsely represented to ‘P’ that her husband had met with a serious accident whereby both his legs were broken. By reason of this mis-representation ‘P’ suffered with a serious nervous shock, and was made seriously ill. ‘P’s husband who had to suffer expenses for medical treatment can claim damage from ‘A’ for shock cause by his joke.

Thus, this article was an overview of the law of tort, its nature and elements. Every person should know his rights under tort and raise his voice if there is any infringement of it.

Author: Utkarsha Kupte,
Barati Vidyapeeth's New Law College, Pune. Student of First Year BBA LL.B

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