The Law of Torts allows the plaintiff to claim damages from the defendant for a tortious act. The term “tort”, has been derived from the Latin word tortum which means “twisted” or “crooked”. Although there has been no unanimous consensus on a specific definition of what constitutes a tort, there has been an agreement on the elements that must be present to constitute a tort. This article will elaborate on the elements that are essential to constitute tortious liability.
In his book, “The Law of Tort”, Professor Winfield, in his introductory chapter takes the position that “all injuries done to another person are torts unless there is some justification recognised by law”. A tort has come to mean an act which is wrong. Law of Torts allows the plaintiff to claim unliquidated damages for a legal civil wrong. However, tort law does not allow the plaintiff to claim damages for any and every wrong. Thus, it is important to understand what ingredients constitute a tortious liability, so to allow an affected party to claim damages.
Following two conditions should be satisfied to constitute a tort:
- A “wrongful act”
- Such wrongful act should result in “legal damage”
- As per the Law of Torts, 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. This implies that the person must have engaged in doing either a positive wrongful act or made an omission which he shouldn’t have, which would have made him liable.
To understand if an act is legally wrongful or not, we must look if the wrongful act detrimentally affects the legal right of the other person. To put it simply, an act will be a wrongful act as per tort law if the act causes some harm to the legal right of the other person.  Thus, it is essential that the legal right be affected detrimentally.
In Radhe Shyam v. Gur Prasad, Mr Gur Prasad filed a suit against Mr Radhey Shyam for permanent injunction restraining the defendant from installing and running a flour mill in the premises occupied by the defendant. The plaintiff alleged that the mill was causing a lot of noise which in turn was affecting the health of the plaintiff. It was held that by running a flour mill in a residential area, the defendant was causing a nuisance to the plaintiff and affecting his health severely. The defendant was held liable.
Additionally, it is not enough under the law of torts that the act is mere moral or social wrong. Tort law does not provide any remedy for a moral or social wrong. For example, it may be a moral or social wrong to not feed a dying man, but since it is not a legal wrong affecting the legal right of a person, tort law will not provide a remedy. Tort law provides a remedy only for a legal wrong, even though the said wrong may not be a moral or social wrong.
II. The Law of Torts Does Not Cover Every Damage to be Admissible for Tortious Liability
There may be a wrong done to a person, but, if it has not caused, what the law terms actual “legal damage” to him, there is no redress available under the law of tort. Hence, the damage should result in legal damage, and not merely a pecuniary damage. The damage should be such that is a breach of a legal duty or violation of a legal right of another person . If there has been a violation of a legal right, the same is actionable whether the plaintiff has suffered any other loss or not. This theory is encapsulated in the maxim “Injuria sine damno”.
Injuria means an infringement of the right of the plaintiff. Damnum means harm, loss or damage in respect of money, comfort, health or the like. Thus, when there has been injuria or the violation of a legal right and the same is not accompanied with a damnum or harm to the plaintiff, the plaintiff can still go to the court of law.
Ashby v. White is a leading case explaining the maxim injuria sine damno. In this case, the plaintiff succeeded in his action, even though the defendant’s actions did not cause any damage. 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. However, it was held that the defendant was liable because he caused damage to the legal right of the plaintiff by not taking his vote.
In Bhim Singh v. State of J&K, the petitioner, an MLA of the 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 the requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the Assembly session. Thus, it was held that the legal right of Bhim Singh was violated here.
Since what is actionable is the violation of a legal right, it, therefore, follows that 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 any 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.
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 a violation of a legal right of the plaintiff. This is generally so when the exercise of a legal right by one results in consequential harm to the other.
The Gloucester Grammar School case explains the point . There the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss suffered by them.
In Mogul Steamship Co. v. McGregor Gow and Co, a number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. 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.
In Ushaben v. Bhagya Laxmi Chitra Mandir, the defendant was sued for injunction to restrain them from showing the film Jai Santoshi Ma. It was alleged that the film was hurting religious sentiments. However, the defendant was not held liable as it was not a legal wrong to hurt religious sentiments.
Thus, concluding the above discussion, it can be said:
“It is essential to an action in tort that the act complained of should under the circumstances be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do a man harm in his interests, is not enough.”
Thus, it can be derived from the above discussion that while tort addresses the harm caused by a civil wrong, it is not every wrong that the tort law will aim to compensate for. Only the wrongs which cause a legal injury to a person are governed by the law of torts.
Hilliard Francis, ‘Law of Torts or Private Wrongs’ (Boston, Little, Brown and Company).
AIR 1978 All 86.
John C Cherundolo, ‘Tort Law’ (2011) 61 Syracuse L Rev 935.
 92 ER 126.
 1984 (1) SCC 504.
 (1410) YB Hill 11 Hen.
 (1892) AC 25.
 AIR 1978 Guj 13.
Rogers v. Rajendra Dutt (1860) 13 Moore PC 209.