Essential Elements of Torts

Act/omission:

To constitute a tort there must be an act, which can either be negative or positive. There must be
some breach of duty to constitute such wrongful act or omission. It means there was a duty to do
or not to do a certain action, or to behave in a particular manner which a reasonable man is
expected to act under certain circumstances. If a corporation maintains a children park which has
a poisonous plant but fails to put proper fencing. If one of the children eats a fruit from that tree
and dies, then the corporation can be held liable for such an omission. A person cannot be held
liable for social or moral wrong. For example, if somebody fails to help a starving man then he
cannot be held liable because it is a moral wrong unless some legal duty can be proved.

Case laws: Glasgow coronary V. Taylor, 1992: In this case a corporation fails to put proper
fencing to keep the Children away from a poisonous tree and a child plucks and eat the fruits
orchestra the poisonous tree and dies, the corporation be liable for such omission.
In Municipal Corporation of Delhi v.Subhagwati, where 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 results in the death of number of persons, the Corporation would be liable for its
omission to take care.
Legal Damage:

In order to constitute tort, breach of legal duty must be there. The legal right vested with the
plaintiff should have been breached i.e certain act or omission have resulted in the breach of
legal duty. The action can be instituted if the is a breach of legal right. For the injury sustained by
the plaintiff, damages could be claimed by him. Legal damage could be understood more clearly
with the help of following maxims:

a) Injuria sine damnum:

Injuria sine damno is a violation of a legal right without causing any harm, loss or damage to the
plaintiff and whenever any legal right is infringed, the person in whom the right is vested is
entitled to bring an action. Every person has an absolute right to his property, to the immunity of
his person, and to his liberty & infringement of this right is actionable per se. A person against
whom the legal right has been infringed has a cause of action such that even a violation of any
legal right knowingly brings the cause of action. The law even gives the liberty that if a person
merely has a threat of infringement of a legal right even without the injury being completed, the
person whose right has been threatened can bring a suit under the provisions of Specific Relief
Act under Declaration and injunction.

For Example: - If a person is wrongfully detained against his will, he will have a claim
for substantial damages for wrongful imprisonment even if no consequential loss was
suffered upon the detention.
Thus, this maxim provides for,
1) Infringement of a legal right of a person.
2) No actual loss or damage is required to prove.
3) Infringement of a private right is actionable per se.
In the case of Ashby Vs. White (1703) wherein the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The defendant, a returning
officer wrongfully refused to take the plaintiff’s vote. The plaintiff suffered no damage
since the candidate which he wished to vote already won the elections but still, the
defendants were held liable. It was concluded that damage is not merely pecuniary but
injury imports a damage, so when a man is hindered of his rights he is entitled to
remedies.

In Municipal Board of Agra v Asharfi Lal, the facts are, the Plaintiff (Asharfi Lal) was
entitled to be entered as an elector upon the electoral roll. His name was wrongfully
omitted from the electoral roll and he was deprived of his right to vote. It was held by the
court that if any duly qualified citizen or person entitled to be on the electoral roll of an
constituency is omitted from such roll so as to be deprived of his right to vote, he has
suffered a legal wrong, he has been deprived of a right recognised by law and he has
against the person so depriving him, a remedy, that is, an action lies against a person
depriving him of his right.

b) Damnum sine injuria

Damnum sine injuria means an actual and substantial loss without infringement of any
legal right. In such a case no action lies. There are many harms of which loss takes no
account and mere loss of money's worth does not by itself constitute a legal damage.

The essential requirement is the violation of a legal right.

There are many forms of harm of which the law takes no account,

1) Loss inflicted on individual traders by competition in trade,

2) Where the damage is done by a man acting under necessity to prevent a greater
evil,

3) Damage caused by defamatory statements made on a privileged occasion,

4) Where the harm is too trivial, too indefinite or too difficult of proof,

5) Where the harm done may be of such a nature that a criminal prosecution is more
appropriate for example, in case of public nuisance or causing of death,

6) There is no right of action for damages for contempt of court.

Gloucester Grammer School Case, Held. The defendant, a schoolmaster, set up a rival
school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their
fees. Held, the plaintiff had no remedy for the loss suffered by them. Hanker J. said
"Damnum may be absque injuria as if I have a mill and my neighbour builds another mill
whereby the profits of my mill is diminished... but if a miller disturbs the water from
going to my mill, or does any nuisance of the like sort, I shall have such action as the law
gives."

Chesmore v.Richards, The plaintiff, a mill owner was using water for over 60 years from
a stream which was chiefly supplied by the percolating underground water. The
defendants dug a well on their land deep enough to stop the larger volume of water going
to plaintiff's stream. Held, that the plaintiff has no right of action since it was a case of
damnum sine injuria.

Dickson v. Renter's Telegraph Company, 'A' sent a telegram to 'B' for the shipment of
certain goods. The telegraph company mistaking the registered address of 'C' for that of
'B', delivered the telegram to 'C'. 'C', acting on the telegram sent the goods to 'A' who
refused to accept the goods stating that he had ordered the goods not from 'C' but from
'B'. ‘C’ sued the Telegraph Company for damages for the loss suffered by him. Held, that
‘C' had no cause of action against the company for the company did not owe any duty of
care to 'C' and no legal rights to 'C' could, therefore, be said to have been infringed.

Distinction between Injuria sine damnum and Damnum sine injuria

First, on the basis of meaning,

Injuria sine damunm means violation of a legal right without actual loss or damages
whereas Damnum sine injuria means actual or substantial Damages without infringement
of a legal right.

Second, on the basis of action,

Injuria sine damunm is always actionable whereas Damnum sine injuria is never
actionable.

Third, on the basis of nature of wrong,

Injuria sine damunm contemplates legal wrongs where there is a remedy whereas
Damnum sine injuria contemplates only moral wrongs without any remedy.

Legal Remedy

Ubi jus ibi remedium (Where there is a right there is a remedy)

Right without a remedy is of no use. Right is a person’s capacity to compel another

person to do or to abstain from doing an act, and capacity to compel means legal capacity
to compel. Unless there is a legal remedy, there cannot be legal compulsion.

Therefore, a right without a remedy would be redundant.

Therefore, right and remedy are correlated. If there is no right there will be no remedy.

In this regard there are two types of rights.

1. Absolute rights: An absolute right is a right the violation of which amounts to a
wrong and gives rise to cause of action. There is no further requirement of showing
any loss or injury. The tort which is based on the violation of an absolute right is
actionable per se.

2. Conditional rights: A conditional right is a right the violation of which by itself

does not amount to a wrong so as to give rise to cause of action. The plaintiff has to
further show that he has suffered loss due to the violation of that right. Loss is a
condition precedent for giving rise to cause of action.

MENTAL ELEMENTS IN LAW OF TORTS

Mens rea may take any one of the following three forms:

1. Intention

2. Rashness (Recklessness)

3. Negligence.

On the other hand, Civil Law of Obligations, of which Law of Torts is a part, seeks
mainly to compensate the victim of a wrong committed by another person. Therefore,
the question as to whether the wrong-doer had committed the wrong with a guilty
mind is not relevant to Law of Torts.

The obligation to make reparation for the damage caused wrongful act arises from the
fault, and not from the intention. Any invasion of the civil rights of another person is
in itself a legal wrong, carrying with it liability to repair its necessary or natural
consequences, in so far as these are injurious to the person whose right is infringed,
whether the motive which prompted it be good, bad, or indifferent.

It is no defence to an action in tort for the wrong-doer to plead that he did not intend
to cause damage, if damage has resulted owing to an act or omission on his part
which is actively or passively the effect of his volition. A want of knowledge of the
 illegality of his act or omission affords no excuse. Every man is presumed to intend
and to know the natural and ordinary consequences of his acts (Guille v. Swan, the
balloon case. Scott v. Shepherd the lighted squib case.) But in some cases fraud or
malice are the essence of that act or omission. Only in such cases knowledge of facts
will be relevant to hold the alleged wrong-doer guilty or otherwise.

INTENTION

Where a person can foresee the natural consequences of his own act and also desires
those natural consequences, he is said to have committed that act intentionally. For
example, A shoots at B knowing full well that by doing so he may injure or even kill
B, and with a desire that B should be injured or killed. Here A has intentionally shot
at B. If the defendant must has acted consciously and of his own free will and has
intended some injury to the plaintiff’s interest, the he is said to have committed a
wrong intentionally.

 Conduct is not intentional where it results from unconscious or involuntary

movement.
 Nor is it intentional for the purpose of Law of Torts where although the defendant
has acted of his own free will, yet he intended no harm to the plaintiff.

Thus, if A sees B sitting in front of him in the bus and taps him on the head to attract
his attention, then A commits the tort of battery. A consciously and voluntarily moves
his hand over B’s head and taps it. A intends both the act, and the consequence—the
application of force, to B’s person. Technically, there is a tort committed. This is
equally true if A taps C’s head in mistake for B’s. If the defendant must have acted
consciously and of his own free will and must have intended some injury to the
plaintiff's interest.

RASHNESS

But where he can foresee those consequences but does not desire them, he is said to have
acted rashly or recklessly. For example, A drives a vehicle at an excessive speed on a
crowded street knowing full well that he may cause accident and injure somebody, but
without desiring that accident should take place and hoping that no one will be injured.
Here A is driving the vehicle rashly or recklessly.

NEGLIGENCE

In case of negligence, there is neither foresight nor desire of the consequences of one’s
own natural acts. However, there is failure to take adequate care as demanded by the
circumstances in which the act is done.

Negligence is the breach of a duty caused by the omission to do something which a

reasonable man, guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do, or by doing something which a prudent and reasonable man
would not do, whereby damage has resulted to a person.

The word “negligence” is used in two senses.

a) It is the name of a tort, so that the plaintiff can sue in negligence where an interest
of his which the law protects by that tort is injured.

b) Negligence is itself sometimes an ingredient of other torts.

It is therefore both a tort and a concept of the law of torts.Negligence is a type of

behaviour. It is distinguishable from other behaviour by the notional mental attitude
of the defendant. Negligence exists where the defendant did not intend to injure the
plaintiff, and yet he disregarded or did not fulfill a duty imposed upon him by the law.
It is akin to carelessness, but is a vastly more complicated concept.

As observed by Lord Wright, “In strict legal analysis negligence means more than
needless or careless conduct, whether in omission or commission: it properly
connotes the complex concept of duty, breach and damage thereby suffered to the
person to whom the duty was owing.”

An action for negligence proceeds upon the idea of an obligation or duty on the part
of the defendant to use care, and a breach of it to the plaintiff's injury. It is not
necessary that the duty neglected should have arisen out of a contract between the
plaintiff and defendants. However the duty may arise, whether by a statute or
otherwise, if it exists and is neglected to the injury of the plaintiff, he has a right to
sue for damages. There cannot be a liability for negligence unless there is a breach of
some duty.

MOTIVE

Motive is defined as ulterior intention. If we say that A has intentionally shot at and
killed B, the next question would be why did A intend to kill B? In other words, what
was the reason behind A’s intention to kill B? It may be because was the legal heir of
B and wanted to inherit the property quickly by killing B. Or, it may be that A had
some enmity against B and due to that hatred he killed B. Or, may be A wanted to
take some revenge against B. Such intention to acquire B’s property through
inheritance, enmity or hatred, or intention to take revenge are said to be motive
behind the killing of B by A. Motive is almost always irrelevant in the English law of
tort. A man’s reasons for doing an act do not make a lawful act unlawful, nor vice
versa.

MALICE

Malice is a term with many meanings. Firstly, it is often used to mean spitefully or
with ill-will. Like other motives, malice in this sense is invariably irrelevant in Law of
Torts, and therefore, is not essential to the maintenance of an action for tort.

Bradford Corporation v. Pickles, Mr. Pickles was annoyed at the Bradford

Corporation’s refusal to purchase some land from him at the inflated price he
demanded. In order to force their hand, he sank a shaft on his land, which interfered
with water percolating from higher land belonging to the Corporation. The
Corporation unsuccessfully sought an injunction to restrain him from polluting and
diminishing their water. The House of Lords rejected the claim, Lord McNaughton
remarking that “It is the act, not the motive for the act that must be regarded. If the
act, apart from motive, gives rise merely to damage without legal injury, the motive,
however reprehensible it may be, will not supply that element.”
In this first sense, malice is occasionally relevant as a necessary element required to
establish the defendant's liability, e.g. to rebut the defence of qualified privilege in
libel or slander.

Malice has a second meaning. In this legal sense, malice means the intentional
commission of an act with any improper motive. This is much wider than the
layman's use of the word malice. Malice is usually used in this sense in the few
contexts in which it is relevant in tort. For example, in the tort of malicious
prosecution, malice is constituted by any motive other than that of simply instituting a
prosecution for the purpose of bringing a person to justice.

Sometimes malice is used in it archaic sense to mean simply an intentional

performance of a tortuous act. It is in this sense that pleaders in libel and slander
actions traditionally allege that the defendant “falsely and maliciously…” In fact, this
means merely that the defendant’s publication of the defamatory matter was either
intentional or negligent.

Malice in this sense would appear to be a confusing and unhelpful use of the word,
and hence, should be avoided.

Malice in Fact and Malice in Law

It is of two kinds, ‘malice in fact’ (or express malice or actual malice) and ‘malice in
law’ (or implied malice). The first is what is called malice in common acceptation,
and means ill-will against a person. The second means a wrongful act done
intentionally without just cause or excuse where a man has a right to do an act; it is
not possible to make his exercise of such right actionable by alleging or proving that
his motive in the exercise was spite or malice in the popular sense. An act not
otherwise unlawful cannot generally be made actionable by an averment that it was
done with evil motive. A malicious motive per se does not amount to an injuria or
legal wrong.