Elements of Tort Flashcards
What are the elements of torts
- ** Wrongful act or omission by defendant**
In order to make a person liable for a tort, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is illegally made, will make a person liable. For example, A commits the act of trespass, he can be made liable for trespass. Similarly, when there is a legal duty to do some act and a person fils to perform that task, he can be made liable for such omission. For example, if the Municipal Corporation, having control of a clock tower in the heart of city does not keep it in proper repairs and the falling of the same results in the death of a number of persons, the Corporation would be liable for its omission to take care in the matter. In the same way, an employer failing to provide a safe system of work, would be liable for the consequences of such an omission.
It may be noted that the wrongful act or a wrongful omission must be one recognized by law. If there is moral or social wrong, there cannot be a liability for the same. For example, a somebody fails to help a starving man aur save a drowning child it is only a model wrong and therefore no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child -
The actor omission should result in legal damage i.e Infringement of legal right vested in Plaintiff
In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. Unless there has been violation of a legal right, there can be no action under law of torts. If there has been violation of a legal right, the same is actionable whether, the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria sine damno.” 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.
when there is no violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused some loss or harm or damage to the plaintiff. This is expressed by the maxim ‘Damnum sine injuria’. It 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 not unlawful or unauthorized but a necessary consequence of the exercise of his own lawful rights by the defendant, no action should lie. Thus, the test to know whether the defendant should or should not be liable is not whether 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.
Injuria sine damno
There are two kinds of torts:
Firstly, those torts which are actionable per se based on perfect right I.e actionable without proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass.
Secondly, the torts which are actionable only on the proof of some damage caused by an act I.e qualified right
Injuria sine damno means violation of a legal right without causing any harm, loss or damage to the plaintiff.
In Ashby v white (1703) Holt, C.J. said: “If the plaintiff has a right, he must of necessity have means to vindicate and maintain it, and a remedy, if he is injured in the exercise of enjoyment of it; and indeed, it is a vain thing to imagine a right without right remedy, for want of right and want of remedy are reciprocal.”
In Bhim Singh v. State of J. & K., the petitioner, an M.L.A. 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 Magistrate within requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right to personal liberty guaranteed under Article 21 of the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were awarded to him
Damnum sine Injuria
It means damage which is not coupled with an unauthorized interference with the plaintiff’s lawful right. Causing of damage, however substantial, to another person is not actionable in law unless there is also violation of a legal right of the plaintiff.
“The mere fact that a man is injured by another’s act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.
Gloucester grammar school case
Mogul steamship Co. V McGregor gow & Co
Ushaben v bhagyalaxmi Chitra mandir 1978 guj
