CONSTITUENTS OF TORTS

A Project submitted to

Army Institute of Law, Mohali

In partial fulfillment of the requirements for the award
of degree of B.A.L.L.B

Submitted to: Submitted by:

Mrs. Anmolpreet Bajwa Vidhi Goyal
Assistant Professor 2075
(Law)

Punjabi University, Patiala(Punjab)

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 DECLARATION

It is certified that my project work presented in this report entitled

‘Constituents of Torts’ embodies the results of original research work carried
out by me. All the ideas and references have been duly acknowledged.

DATE: 15TH DEC, 2020 NAME: Vidhi Goyal

PLACE: ARMY INSTITUTE OF LAW ROLL NO. 2075

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 ACKNOWLEDGEMENT

This project consumed huge amount of work, research and dedication. Still
implementation would not have been possibleif I did not have a support of
many individuals and organizations. Therefore I would like to extend my
sincere gratitude to all of them.

Mrs. Anmolpreet Bajwa, our torts law teacher for provision of her expertise,
and technical support in the implementation. Without her superior knowledge
and experience, the project would lack in quality of outcomes, and thus her
support has been essential.

I would like to express my sincere thanks towards all who devoted their time
and knowledge in the implementation of this project.

Nevertheless,I express my gratitude towards my family and colleagues for their

kind co-operstion and encouragement which help me in completion of this
project.

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 INDEX

Declaration 2

Acknowledgement 3

Introduction to torts 5

Constituents of Torts 6-10

Conclusion 11

Bibliography 12

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 Introduction to Torts

The word “tort” is derived from the Latin term ‘tortum’ which means ‘to twist’. Thus, tort
means other hand, twisted, crooked or unlawful. It is equivalent 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. Compensation for torts in made in the form of
unliquidated damages.

Tort originated in UK in 18th and 19th century. Sir Fredrick Pollock drafted it in the form of
Civil Wrongs Bill in 1886 but it was never enacted. It formulated from judicial decisions. So,
it is an uncodified law as it does not find mention anywhere.

Tort as defined by Section 2(m) of Limitation Act,1963 – “Tort means a civil wrong which is
not exclusively a breach of contract or breach of trust.”

Tort – the term is found in Common Law systems for a civilly actionable harm or wrong, and
for the branch of law dealing with liability for such wrongs. Analytically, the law of tort is a
branch of the law of obligations, where the law obligates to refrain from harm to another and,
if harm is done, to repair it or compensate for it, are imposed not by agreement but
independently of agreement by force of the general law. Socially, the function of tort is to
shift loss sustained by one to the person who is deemed to have caused it or been responsible
for its happening, and in some measure to spread the loss over an enterprise or even the
whole community.

The normal damages for tort is an award of pecuniary damages in compensation for the harm
done; in personal injury and death cases, the computation of damages involves many
complicated issues.

We may define tort as a civil wrong which is redressible by an action for unliquidated
damages and which is other than a breach of contract or breach of trust.1

Examples of torts – trespass, nuisance, defamation, negligence, vicarious liability, strict

liability etc

Constituents of Torts
1
R.K. Bangia, The Law of Torts 3, 4, 6, (Allahabad Law Agency, Faridabad, 25th edition, 2020)

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Wrongful Act or Omission Legal Damage Legal
Remedy
by the defendant

1. Wrongful Act or Omission by the defendant:

In order to make person liable for a tort, he must have done something which he was not
expected to do, or he must have omitted to do something which he was supposed to do.
Wrongful act is an act which is contrary to the provisions of the law, thereby causing injury
to the legal rights of the another. E.g., A commits the act of trespass is liable for trespass, or
publishes a statement defaming another person is liable for defamation or wrongfully detains
another person is liable for false imprisonment.

Similarly, when there is a legal duty to do some act and person fails to perform that duty, he
can be made liable for such omission.2

In Glasgow Corporation v. Taylor, Glasgow Corporation had a duty to maintain a public

park which includes putting a proper fence also around the park also. It fails to put the proper
fence to keep the children away from a poisonous tree. Due to which a child crosses the park
and plucks and eats the fruits of the poisonous tree and dies. The corporation was held liable
for such an omission on their part and thus was liable to pay damages.3

In Municipal Corporation of Delhi v Subhagwanti, MC had a duty to maintain clock tower

that was situated in the heart of the city. It failed to make proper repairs. Hence, there was an
omission on the part of MC. Falling of the same results in the death of the persons, the
Corporation would be liable for its omission.4

2
R.K. Bangia, The Law of Torts 16, (Allahabad Law Agency, Faridabad, 25th edition, 2020)

3
(1922) 1 A.C. 44
4
A.I.R. 1966 S.C. 1750

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In General Cleaning Corporation Ltd. V Christmas, in this case employer failed to
provide a safety belt for safe system of work liable for consequences of such an omission.5

It may be recognized that the wrongful act or omission must be one recognized by law. Mere
moral or social wrong cannot make person liable for tort. For example, if somebody is falling
from a building and a person standing nearby doesn’t help the former, the latter isn’t liable
because it is only a moral wrong and therefore, no liability can arise until such an act is made
a legal wrong.

2. Legal Damage

“Damage” means the harm or loss suffered or presumed to be suffered by a person as a result
of some wrongful act of another. The difference between the terms “damage” and “damages”
is that, the former refers to the loss suffered by someone while the latter refers to the
compensation awarded by the court of the victim for the losses suffered by him.

From the point of view of the presumption of damage, rights are classified into two
categories: absolute and qualified.

When an absolute right is violated the law conclusively presumes damage even if the person
wronged may not have suffered any pecuniary loss. Violation of absolute right is actionable
per se, that is, without proof of any damage. The damage so presumed is called legal damage.
The significance of legal damage is illustrated by two maxims, namely, injuria sine damno
and damnum sine injuria. In case of qualified rights, there is non presumption of damage and
the violation of such rights is actionable only on the proof of damage.6

Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized

interference howsoever trivial, with the plaintiff’s right. Damnum means substantial harm,
loss or damage in respect of money, comfort, health or the like. Thus, when there has been
injuria or the violation of a legal right and the same has not been coupled with a damnum or
harm to the plaintiff, the plaintiff can still go to the court of law because no violation of a
legal right should go unredressed.7

5
(1953) A.C. 180
6
Alam Albab. (n.d.). Constituents of tort. Available at :
http://www.legalservicesindia.com/article/2584/Constituents-of-Tort.html (last visited: 12/12/20)
7
R.K. Bangia, The Law of Torts 17, (Allahabad Law Agency, Faridabad, 25th edition, 2020)

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Damnum sine injuria means that a damage without the violation of a legal right is not
actionable in a court of law. The reason for the same is that if the interference in the rights of
another person is unlawful or unauthorized but a necessary consequence of the exercise of his
own lawful rights by the defendant, no action should lie.8

Injuria Sine Damno

Injuria sine Damno refers to the cases of infringement of an absolute private right without
any actual loss or damage. This maxim says that the infringement of certain rights is itself
considered as damage and there is no need to prove that an actual damage is caused. Every
person has an absolute right over his property, to the immunity of his person and an
infringement of these rights is actionable per se. Here the law presumes damage because
certain acts are likely to result in harm owing to their mischievous tendency that law has
strictly prohibited them. Under this maxim, actual or perceptible or appreciable loss detriment
is not indispensable to the foundation of an action.9

The principle has been applied in following cases.

In Ashby v White, plaintiff who was a qualified voter at a parliamentary election turned up
to cast his vote, but the defendant, a returning officer wrongfully refused to take plaintiff’s
vote on the ground that he is not a settled inhabitant and doesn’t contribute to church or poor.
No loss was suffered by such refusal because the candidate for whom he wanted to vote won
the election in spite of that.

Lord Holt C.J. upheld Ashby’s submissions arguing that what was at issue was “a most
transcendent thing, and of a high nature.” Finally, it was held that the defendant by
preventing plaintiff from voting violated Ashby’s legal right and was entitled to damages10.

In Bhim Singh v State of J&K, the petitioner, an MLA of J&K Assembly, was wrongfully
detained by the police while he was going to attend the Assembly session. He was not
produced before the court within the requisite period. As a consequence of this, the member
was deprived of his constitutional right to attend the Assembly session. There was a violation
of fundamental right to personal liberty granted under Article 21 of the constitution. By the

8
R.K. Bangia, The Law of Torts 17, (Allahabad Law Agency, Faridabad, 25th edition, 2020)

9
Alam Albab. (n.d.). Constituents of tort. Available at :
http://www.legalservicesindia.com/article/2584/Constituents-of-Tort.html (last visited: 12/12/20)

10
(1703) 2 Ld. Raym. 938

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time the petition was decided by SC, Bhim Singh had been released, but by the way of
consequential relief, exemplary damages amounting to Rs. 50,000 was awarded to him.11

In Marzetti v Williams, 1830, plaintiff was holding an account in the bank of defendant.
Though there was sufficient amount of money in the plaintiff’s account, but when plaintiff
tried to withdraw some money via self-cheque, he was not allowed to do the same without
any sufficient reasoning by the bank officials for their act. Plaintiff filed the suit against the
banker who had refused to honour his cheque. Defendant was held liable by the court and the
plaintiff was compensated for not being able to withdraw his money.12

Damnum sine injuria

Damnum sine injuria involves the cases in which there is no infringement of any right but
the plaintiff has suffered actual damage. Here the actual damage means physical loss in terms
of money, health etc. Mere loss in money or money’s worth does not, by itself, constitute a
tort. The most terrible harm may be inflicted on one man by another without a legal redress
being obtainable as a doer did not infringe any legal right of the sufferer. The maxim means,
it can be implied, that there are no legal remedies for moral wrongs unless some rights of the
victim are being violated.13

The principal has been applied in following cases.

In Gloucester Grammar School Case, defendant was school teacher in plaintiff’s school.
Because of some dispute defendant left the school and started his own school. As defendant
was very famous among his teaching, boys from the plaintiff’s school left and joined
defendant’s school. Plaintiff sued the defendant for monetary loss caused. It was held that
defendant is not liable. The defendant had, no doubt, suffered considerable damages because
of the increased competition but none of his legal light were infringed by the defendant, and
hence defendant can’t be held liable just because plaintiff had suffered monetary losses.14

11
A.I.R. 1986 S.C. 494

12
(1830) 1 B & Ad 415

13
Alam Albab. (n.d.). Constituents of tort. Available at :
http://www.legalservicesindia.com/article/2584/Constituents-of-Tort.html (last visited: 12/12/20)

14
(1410) Y.B. Hill 11 Hen, 4 of 47, p. 21, 36

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In Ushaben v Bhagyalaxmi Chitra Mandir, the plaintiffs sued for a permanent injunction
against to refrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended
that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati,
Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to
religious feelings had not been recognized as legal wrong. Moreover, no person has legal
right to enforce his religious views on another or to restrain another from doing a lawful act,
merely because it did not fit in with the tenets of his particular religion. Since there was no
violation of a legal right, request of injunction was rejected.15

3. Legal Remedy

A tort is a civil injury but all civil injuries are not torts. The wrongful act must come under
the category of wrongs for which the remedy of a civil action for damages is available.

The essential remedy for tort is an action for damages. But there are some other remedies too:

 Injunction may be obtained in addition to damages, in certain cases of wrongs.

 Specific restitution of a chattel maybe claimed in an action for the detention of chattel
 In cases of dispossession of land, the plaintiff can also claim recovery of his land.

The law of torts is said to be a development of the maxim “ubi jus ibi remedium”, which
roughly means that “for every wrong, the law provides a remedy”. But it does not mean that
there is a remedy for each and every wrong. There are many moral and political wrongs
which do not have any legal remedy. For example, there is no remedy for the breach of
solemn promise not under seal and which is made without consideration. The maxim intends
to convey the fact that legal wrong and legal remedy are correlative terms. Therefore, it can
be said that, the correct principle is that wherever a man has a right, the law should provide
remedy as observed in Letand v Cooper . Furthermore, it was laid down in Abbot v
16

Sullivan that the absence of remedy is evidence but is not conclusive that no rights exist.17

Conclusion

15
A.I.R. 1978 Guj. 13

16
(1965) 1 QB 232.
17
(1952) 1 KB 189

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To constitute a tort, the above stated 3 elements i.e., wrongful act or omission, legal damage
and legal remedy are equally important. When the 1 st element occurs, 2nd and 3rd are
mandatory to happen. Otherwise, it won’t result in tort. There is a need to differentiate
between what is a legal and a moral wrong and only legal wrong result in tort on the part of
defendant. Also, for every legal wrong committed, there should be some compensation in the
form of damages for the plaintiff.

Bibliography
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Bibliography for books

 R.K. Bangia, The Law of Torts, (Allahabad Law Agency, Faridabad, 25th edition, 2020)

Bibliography for websites

 Alam Albab. (n.d.). Constituents of tort. Available at:

http://www.legalservicesindia.com/article/2584/Constituents-of-Tort.html (last visited: 12/12/20)

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