Elements of Tort

Wrongful Act/Omission – must prejudicially affects/invades the legal right of another person.

Legal Rights (as defined by Austin) as a faculty which resides in a determinate party or parties by virtue of a
given law and which avails against a party other than the party or parties in whom it resides.

Rights available against the world at large are very numerous and divided into private and public rights.

Private Rights – belonging to a particular person to the exclusion of the world at large. Example –
right related to body, mind and estate.

Public Rights – belong in common to the members of the state. Example – Public Nuisance.

To every right there corresponds an obligation or duty.

Legal Duty - The duty with which the law of torts is concerned – is the duty to abstain from causing wilful
injury and to respect the property of others and to use due diligence to avoid causing harm to
others.

Legal Duty v/s Moral Duty

Liability for a tort arises – when the wrongful act amounts either to an infringement of a legal right or a
breach or violation of a legal duty.

Legal damage – harm or loss suffered or presumed to be suffered by a person as a result of some wrongful
act of another.

Absolute Rights - Infringement of an absolute private right without any actual loss or damage – the
person whose right is infringed has a cause of action
the tortious action is complete the moment right is violated irrespective of whether it is accompanied by
any actual damage.
Example – trespass to person i.e. assault, battery and false imprisonment and trespass to property

Qualified Rights – the injury or wrong is not complete unless the violation of the right results in actual
or special damage. Example – Negligence, Nuisance, Defamation
Injuria Sine Damnum

Damnum Sine Injuria

Damnum – damage – money, loss of comfort, service, health, etc.

Injuria – tortious act – infringement of a legal right - need not be wilful and/or malicious

Injuria Sine Damnum – where a right is infringed [with or without damages]

Case:

Ashby v White (1703) – a returning officer was held liable n damages for wrongfully refusing to take the
claimant’s vote at a parliamentary election.
Damnum Sine Injuria

actual or substantial loss without infringement of any legal right – no action lies.

there are many acts which though harmful are not wrongful and give no right of action

Cases:

Gloucester Grammar School (1410) – Where the defendant, a schoolmaster, set up a rival school next door to
the plaintiff ’s and boys from the plaintiff ’s school flocked to defendant’s, it was held that no action could be
maintained.

Mayor of Bradford Corpn. v. Pickles (1895) AC 587

Town Area Committee v. Prabhu Dayal, AIR 1975 All 132

P.Seetharamayya v. Mahalakshmanna, AIR 1958 AP 103

Legal remedies -

Remedy is a civil action for damages. The essential remedy for a tort is an action for damages - the
sum awarded by court to compensate the damage caused is called damages. But depending on the
facts there are other remedies also like injunction, specific restitution of a property.

ubi jus ibi remedium – there is no wrong without a remedy – jus signifies the authority to do or
demand something and remedium - the right of action

If a person has a right – s/he must of necessity have a means to vindicate and maintain it, and a
remedy if s/he is injured in the exercise or enjoyment of it

It is a vain to imagine a right without a remedy – whenever a person has a right the law should
provide a remedy.
Requirement of mental element in law of torts

- Malice – Ill-will
- Malice in law – act done wrongfully done intentionally/knowingly and/or without reasonable and probable cause
– that is the conduct is contrary to the law/violates legal principles
- Malice in fact act dictated by angry feelings or vindictive motive – that is looking at the ill-will/motive behind the
act) – malicious prosecution, defamation (in defence of qualified privilege)

- Motive/Malice/Intention ?

- Intention – mental element/state of mind – is inferred from conduct – some torts require proof that the defendant
acted with a particular intention. – assault, battery, false imprisonment

- Knowledge – mental element – awareness of consequences

- Negligence – type of fault and also an independent tort

- Negligence as a form of fault is a type of conduct – that is failure to take as much care as a reasonable person in
the defendant’s position would have taken in the circumstances.
- Overlap between the concept of negligence (type of conduct) and intention and recklessness (state of mind)
- Possible for a person who acts intentionally or recklessly to also act negligently

- Strict Liability – No fault liability

Requirement of mental element in law of torts

Fault Liability

- Malice – Ill-will

- Malice in law – act done wrongfully done intentionally/knowingly and/or without reasonable and probable
cause – that is the conduct is contrary to the law/violates legal principles

- Malice in fact act dictated by angry feelings or vindictive motive – that is looking at the ill-will/motive
behind the act) – malicious prosecution, defamation (in defence of qualified privilege)

- Motive/Malice/Intention ?

- Intention – mental element/state of mind – is inferred from conduct – some torts require proof that the
defendant acted with a particular intention. – assault, battery, false imprisonment

- Knowledge – mental element – awareness of consequences

- Negligence – type of fault and also an independent tort

- Negligence as a form of fault is a type of conduct – that is failure to take as much care as a reasonable
person in the defendant’s position would have taken in the circumstances.

- Overlap between the concept of negligence (type of conduct) and intention and recklessness (state of
mind)

- Possible for a person who acts intentionally or recklessly to also act negligently

No Fault Liability

- Strict Liability
- Absolute Liability
- Vicarious Liability
Self-reading & Class Discussion: -

Malfeasance - commission of an unlawful act, done in an official capacity (Intentional)

Misfeasance - a transgression, especially the wrongful exercise of lawful authority (improper

performance of lawful action)

Non-feasance - failure to perform an act that is required by law (neglect in carrying out a duty
which is an obligation)
Law of Torts in India

English Common Law – Justice, Equity and Good Conscience

[Rules of English law found applicable/compatible with Indian Society and circumstances]
Law of tort or law of torts?

Salmond –

Does the law of torts consist of a fundamental general principles that it is wrongful to cause
harm to other persons in the absence of some specific ground of justification or excuses?

Or

Does it consist of a number of specific rules prohibiting certain kinds of harmful activity and
leaving all the residues outside the sphere of legal responsibility?
(Pigeon-hole theory)
Sources:
Cases:
1. Mayor of Bradford Corpn. v. Pickles (1895) AC 587
2. Town Area Committee v. Prabhu Dayal, AIR 1975 All 132
3. P.Seetharamayya v. Mahalakshmanna, AIR 1958 AP 103

Books:
1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, 2016 (28th Edition.)
2. W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010 (18th Edition.)
3. Catherine Elliott and Frances Quinn, Tort Law, (Pearson; 10 editions, 2015)

Websites:
1. www.manupatra.com
2. www. westlaw.com