Essentials of a Tort
To constitute a tort, it is essential that the following two essential elements of tort are satisfied;
- There must be some act or omission on the part of the defendant and
- The act or omission should result in legal damage (injuria), i.e., violation of a legal right vested in the plaintiff.
Act or Omission
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.
In Glasgow Corporation v. Taylor, (1922) 1 A.C. 44; a corporation which maintained a public park failed to put proper fencing to keep the children away from a poisonous tree and a child plucked and ate the fruits of the poisonous tree and died, the corporation was held liable for such omission.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; the Municipal Corporation having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same resulted in the death of a number of persons, the Corporation was held liable for its omission to take care in the matter.
Similarly, in General Cleaning Corporation Ltd. v. Christmas, (1953) AC 180: (1952) 2 All; an employer failing to provide a safe system of work, was held 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 a mere moral or social wrong there cannot be a liability for the same.
Injuria sine damno
- Injuria sine damno means violation of a legal right without causing any harm, loss or damage to the plaintiff. There are two kinds of torts:
- Firstly, those torts which are actionable per se, i.e., actionable without the proof of any damage or loss (for example, 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.
- Injuria sine damno covers the first of the above stated cases, where there is no need to prove that as a consequence of an act the plaintiff has suffered any harm and therefore, for a successful action the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e., there is injuria (Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized interference, howsoever trivial, with the plaintiff’s right).
- Ashby v. White, 1703; is a leading case explaining the maxim injuria sine damno where the plaintiff succeeded in his action, even though the defendant’s act did not cause any damage.
Facts of the case: The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election in spite of that.
Held: It was held that the defendant was liable.
- Bhim Singh v. State of Jammu & Kashmir, AIR 1986 SC 494;
Facts of the case:In this case, 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.
Held: 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.
- In such a case, generally nominal damages may be awarded and the purpose of law is served in so far as the violation of a legal right does not remain without a legal remedy. Whereas in some cases as in Bhim Singh’s case, the court may grant even exemplary damages if the court feels that the violation of a legal right is owing to mischievous and malicious act.
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.
- Gloucester Grammar School Case (1410); Facts of the case: There the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Due to the competition the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter.
Held: It was held that the plaintiffs had no remedy for the loss thus suffered by them.
- Mogul Stemship Co. v. McGregor Gow & Co. (1892) A.C. 25; Facts of the case: A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight.
Held: The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.
- Acton v. Blundell (1848); Facts of the case: The defendants by digging a coal pit intercepted the water which affected the plaintiff’s well, less than 20 years old, at a distance of about one mile. Held:They were not liable. It was observed:
“The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights he intercepts or drains off the water collected from underground springs in the neighbor’s well, this inconvenience to his neighbor falls within description damnum abseque injuria which cannot become the ground of action.”
- Bradford Corporation (Mayor of) v. Pickles (1895) A.C. 587; Facts of the case: The plaintiffs had been deriving water from the adjoining land of the defendant which was at a higher level. The defendant sank a shaft over his own land which dismissed and discolored the water flowing to the land of the plaintiffs. The plaintiffs claimed an injunction to restrain the defendant from sinking the shaft alleging that the sole purpose of the same was to injure the plaintiffs as they did not purchase his land at an exorbitant price.
Held: The House of Lords held that since the defendant was exercising his lawful right he could not be made liable even though the act, which injured the plaintiff, was done maliciously and therefore laid down that even if the harm to the plaintiff has been caused maliciously no action can lie for the same unless the plaintiff can prove that he has suffered injuria.
- Town Area Committee v. Prabhu Dayal, AIR 1975 All. 132; Held: It was held that a legal act, though motivated by malice, will not make the defendant liable. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise.
Is it Law of Tort or Law of Torts
- In this connection, Salmond had posed the question;
- Is it the Law of Tort, i.e., is every wrongful act, for which there is no justification or excuse to be treated as a tort; or
- Is it the Law of Torts, consisting only of a number of specific wrongs beyond which the liability under this branch of law cannot arise?
- Winfield preferred the first of these alternatives and according to him it is the Law of Tort. According to this theory, if I injure my neighbor he can sue me in tort whether the wrong happens to have particular name like assault, battery, deceit, slander, or whether it has no special title at all; and I shall be liable if I cannot prove lawful justification.
- Salmond, on the other hand, preferred the second alternative and according to him there is no Law of Tort, but there is Law of Torts. The liability under this branch of law arises only when the wrong is covered by any one or the nominate torts. There is no general principle of liability and if the plaintiff can place his wrong in any one of the pigeon-holes, each containing a labeled tort, he will succeed. This theory is called “Pigeon-hole” theory. If there is no pigeon-hole in which the plaintiff’s case could fit in, the defendant has committed no tort.
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