A) Constituents of Tort
To constitute a tort, the following conditions have to be satisfied:
- There should be a wrongful act or omission.
- The act or omission should result in a legal damage to the plaintiff.
- A legal remedy should be available.
An act is considered wrongful if it invades of the three rights of a person; good reputation, property, and right of bodily safety and freedom.It can be committed negligently or intentionally.
A moral/religious/social wrong will not amount to a tort.
To determine liability of a defendant in tort, it must be ascertained if a legal right of the plaintiff has been violated. Even if no harm is caused by the violation of a right, plaintiff is eligible for a remedy.
The loss suffered may only be relevant as a measure of damages. If no actual damage is proved, the court may awards nominal damages.
Injuria Sine Damnum (Violation of a legal right without damage)
The maxim implies a violation of legal right without any loss or damage. It is actionable in tort as infringement of a legal right warrants a remedy. The plaintiff need not prove any harm, and as long as they can prove a legal right has been breached, they can seek a remedy.
Important Case(s)-Ashby v. White (1703)
The plaintiff was a qualified voter at a parliamentary election, but defendant wrongfully refused to take his vote. The plaintiff did not suffer any loss as the candidate of his choice won despite his missing vote.
The Court held defendant liable, observing that the plaintiff has a right, and if he is interrupted in the enjoyment of this right, he has a remedy.
Similar Case- Bhim Singh v. State of J&K (1986)
Damnum Sine Injuria (Loss without violation of legal right)
This maxim implies that the plaintiff has suffered an actual loss without any infringement of a legal right. No action will lie in such cases. When the exercise of a legal right leads to consequential loss to another, it is never actionable.
Moral and social wrongs do not have a remedy. If they were recognized as such, it would become impossible to carry out everyday affairs without causing some loss.
Some forms of harm where law takes no account:
a) Loss to a trader by bona fide competition (free and fair trade).
b) Damage done by a person acting under necessity to prevent a greater evil.
c) Damage caused by a defamatory statement made on a privileged occasion.
d) Where harm is too trivial, indefinite or too difficult to prove.
e) When harm done is of a nature where criminal prosecution is more appropriate.
f) Contempt of court .
Important Case- Gloucester Grammar School Case (1410)
The defendant set up a school rivalling the plaintiff’s school. Many students from the plaintiff’s school shifted to the defendant’s school. The plaintiff had to reduce the fee due to this competition and suffered a loss.
Court held that the plaintiff has no remedy for this loss suffered.
Mogul Steamship Co. v. Mcgregor Gow and Co.-The Court held that plaintiff had no right of action as the defendant only used lawful means to extend their trade and profit.
Legal Remedy/ Damages
There must be a civil action available for loss caused. The main remedy in torts is in the form of “damages paid”. The law of torts is based on the principle “Ubi Jus ibiremedium”, which means that where there is a right there is a remedy. The concept of torts has been built around this concept that where a legal right is infringed, a remedy is available to the affected party.
However, this maxim cannot apply to cases where there is an immoral action not recognized by law.