Definitions and elements of tort;

According to John Salmond, He addresses tort as being only a civil wrong which has
unliquidated damages (those damages for which there is no fixed amount) in the form of
remedy and which is not just exclusively the breach of contract or the breach of trust or breach
of merely fair and impartial obligation.

According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty
primarily fixed by the law, this duty is towards the other people generally and its breach is
redressible by an action for unliquidated damages.

According to Fraser, A tort is an infringement of a right in rent of a private individual giving a

right of compensation at the suit of the injured party.

Objectives of a tort
1. To determine rights between the parties to a dispute.
2. To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
3. To protect certain rights of every individual recognized by law i.e. a person’s
reputation.
4. To restore one’s property to its rightful owner i.e. where the property is wrongfully
taken away from its rightful owner.

Essential Elements of a tort

Three essential elements which constitute a tort are,

1. A Wrongful act or omission, and

2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
4. Legal remedy

It should be of such a nature that it should give rise to a legal remedy in the form of an action
for damages.

Wrongful Act
A wrongful act can be either morally wrong or legally wrong and can also be both at the same
time.

A legal wrongful act is one which affects one’s legal right, the wrongful act must be one
recognized by law, the act must be in violation of the law to be a legal wrongful act. An act
which seems Prima facie (based on the first impression) innocent may also end up infringing
somebody else’s legal right, innuendo (Where a statement is said by an individual which may
be Prima facie innocent but may also have a secondary meaning which can harm the reputation
of another in the eyes of the public or the person who comes to know of such information) is
an example of this. Liability for a tort arises when the wrongful act being complained of
amounts to an infringement of a legal private right or a breach or violation of a legal duty. i.e.
If a person is prevented from voting by another, even if the candidate he was going to vote for,
wins, his legal right to vote has been violated.

For example, if someone whose religion does not allow him/her to eat non-vegetarian food,
still eats it then he/she will be morally wrong but not legally wrong. And if a person whose
religion doesn’t allow him or her to eat non-vegetarian and he or she strictly follows that
religion is forcefully fed by someone then it is a legal wrong on the part of the person forcing
the other one to eat that food which he or she does not want to eat.

duty imposed by law

A duty of care is one which is imposed on every individual and requires a standard of
reasonable care that he could see as being harmful towards others. Hence, a duty imposed by
law is a duty which is legally enforceable in the Indian courts.

Legal damage
Literal meaning of damage- to affect injuriously.

The term “damages” is often confused with the term “damage”, while they may look similar,
they have different meanings and are significantly distinct from each other, “damages” refers
to the compensation sought for, while “damage” refers to actual loss or injury.

Within the scope of the subject matter

The second important ingredient in constituting a tort is legal damage. In order to prove an
action for tort in the court, the plaintiff has to prove that there was a wrongful act or an act or
omission which resulted in the breach of a legal duty or the violation of a legal right. So, there
must be a violation of a legal right of a person and if there is no violation of a legal right then
there can be no action under the law of torts. If there has been a 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” where ‘Injuria’ refers to “infringement of the legal right of a
person” and the term ‘damnum’ means “substantial harm, loss or damage to that individual”.
The term ‘sine’ means “without”. However, if there is no violation of a legal right, no action
can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant.

Illustration :- A runs a successful school, after 5 months another school opens up nearby due
to which he suffered heavy losses in the business, here he has suffered no legal damage but has
only suffered damage in terms of business value so he cannot sue the competitor school for any
kind of damages (similar to the case of Gloucester Grammar School Case(1410) Y B 11 Hen
IV 27).

The factual significance of legal damage is illustrated by two maxims namely:

 • Injuria sine damno, and

• Damnum sine injuria.

Injuria sine damno means injury without damage. Such damage is actionable under the law of
torts. It occurs when a person suffers a legal damage instead of actual loss, i.e. his legal right
is infringed by some other individual. In other words, this is an infringement of an absolute
private right of a person without having suffered any actual loss.

An example of this can be the landmark case of, Ashby v. White(1703) 92 ER 126, where Mr.
Ashby, the plaintiff, was prevented from voting by the constable Mr. White. This rule is
basically based on the old maxim “Ubi jus ibi remedium” which translates to “where there is a
right, there will be a remedy.”

Another example in the Indian context would be the case of,

Bhim Singh v. State of J and K, where the plaintiff was a Member of the parliament and was
not allowed to enter into the premises of the Assembly election by a police constable, hence
his legal right was infringed.

Damnum sine injuria whereas translates to damage without injury, here the party affected
suffers damage which may also be physical but suffers no infringement of their legal rights. In
other words, it means the occurrence of an actual and substantial loss to a party without any
infringement of a legal right. Here no action lies in the hands of the plaintiff as there is no
violation of a legal right.

Legalremedy -

The wrongful act of the defendant must come under category of wrongs for which the remedy
is civil action for damages. The essential remedy for tort is an action. For damages but there are other
remedies also, e.g. injunction obtained in addition to damages in certain cases of wrong. The law of
tort is said to be a development of maxim "ubi jus ibi remedium" that there is no writ without a
remedy. If a man has a right he must of necessity have a means to vindicate and maintain it and a
remedy it it is injured in exercise or enjoyment of it. It is in vain to imagine right without remedy. Thus
where there is no legal remedy, there is no legal wrong. If out of above three ele ments ,any element
is absent or missing, then there is no tort. Wrongful act and legal damages goes hand in hand. Legal
damage means violation or infringement of legal right.

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 other remedies also:
1)Injunction may be obtained in addition to damages, in certain cases of wrongs.
2)Specific restitution of a chattel maybe claimed in an action for the detention of chattel.
3)In cases of dispossession of land, the plaintiff can also claim recovery of his land.

Distinction between Injuria sine damno and Damnum sine

injuria
(1) On one hand, i.e. in the case of Injuria sine damno there is no physical damage or an actual
loss on the part of the plaintiff while on the other hand in case of damnum sine injuria there is
actual damage and loss on the part of the plaintiff.

(2) Secondly, in the case of Injuria sine damno, the party suffers with the infringement of their
legal rights, while in the case of Damnum sine injuria, there is no legal right infringement.

(3) Thirdly, Injuria sine damno is actionable in the court while Damnum sine injuria is not
actionable in court.

(4) Fourthly, the Injuria sine damno deal with the legal wrongs while Damnum sine injuria deal
with the moral wrongs.

Conclusion

It can very well be established from above that, a tort is a civil wrong which is caused when one
individual infringes another’s legal rights. The situation of Law of tort is not so well as many people
are still not aware of the rights that they possess which is due to the fact that there is a lack of
awareness among the people, the fact that the law of torts is still uncodified and is a direct
derivative of the common law of England makes it less likely to be adaptable in certain cases to the
Indian context, although now it has been adapted into the Indian context.