Tortious Liability: Conditions and Constituents

By | June 15, 2020
Tortious Liability

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Tortious Liability: Conditions and Constituents | Overview

Tortious liability emerges from a breach of a duty which is specified by the law, and this duty towards persons against whom the breach has been conducted leads to an action for damages.[1]A tort in a wider term can be elucidated as a civil wrong, which is independent of contract for which a suitable remedy is an action for unliquidated damages. This article discusses about the general conditions of tort liability, and analyses the concepts of Injuria Sine Damnum, Damnum Sine Injury and remedy of Ubi jus ibi remedium.


Tort generally connotes a breach of a particular duty, independent of contract thereby creating a civil cause of action and for which compensation can be recovered. In brief, tort law safeguards the interest of an individual by providing damages (sum of money), for violating a protected interest or by issuing an injunction, which would be a court order of not allowing the individual to do something.

Nature of tort law suggests that an act/omission by the respective defendant that has led to any damage caused gives rise to tort. Damage can originate by the fault of the defendant and must cause harm which thereby gives rise to a legal liability.[2]

Constituents of Tort Liability

A person should have committed a wrongful act, through which there should be an injury caused, both the tort and the injury should be connected and arise from the same cause of action, the guilt of the tortfeasor should be established which results in resorting to a legal remedy through unliquidated damages.[3]

I. Wrongful Act

A wrongful act is considered as an action or inaction which goes against the law, thereby causing a violation of the substantive right of an individual or contrary to the lawful interest. This wrongful act can be perceived as an act committed or omitted, having caused a direct violation of rights, is considered to be an unlawful or wrongful act, which attracts the first condition of tortious liability. [4]

The rights that are violated can be of two types- Private Rights and Public Rights. Right to Reputation, right to bodily safety and freedom and Right to property are Private Rights. Public Right comprise of rights which belong in common to the members of the society at large. Every right has a parallel legal duty or obligation. This duty comprises of performance of some act or abstaining to perform an act.

However, Act and Omission are distinct from each other. An act attributes to tortious liability when where is a violation of a right or wrongful act. Omission to act is when there was a duty to act and liability arises due to non-performance of the duty.

Example: If an infant is drowning in a pool, and if a swimmer is present in the present scene and does not help the child, the swimmer will not be held liable because of the absence of duty of care towards the child. However, in this case, if the parents are present and do not try to save the child from drowning, they would be held liable under the tort law due to the presence of duty of care. In cases where there is absence of a duty to rescue another individual, but the person starts the rescue work can be held liable, due to the failure of not properly performing the task.

Glasgow Corporation v. Taylor (1922) 1 AC 44

In this case, the father of a child sued the Glasgow Corporation due to the death of his seven-year-old child due to the consumption of the berries from a poisonous plant in Botanic Gardens in Glasgow and claimed damages for the same. The issue here was whether the Glasgow Corporation would be held liable for compensating the bereaved father.

The Courts held that the corporation would indeed be held liable because the Corporation permitted children to enter the gardens and it was understandable that children would be attracted to these poisonous berries and the corporation took no active steps to prevent or control it.

II. Guilt of the Tortfeasor/ Mens Rea

Mens- rea is a Latin term, which signifies ‘guilty mind’ or ‘culpable condition of the mind’. This mostly constitutes the second condition necessary to constitute liability in tort law. ‘Actus non facit reum nisi mens sit rea’ is derived from mens-rea suggests that an act will not make anyone guilty if there is no presence of a guilty mind.

Therefore, in order to make a person liable for a tort, the person should have a guilty mind. Guilt can be of two types: when the intention is direct, where the tortfeasor can foresee the result of the act and commits the act knowingly or indirect when the tortfeasor can foresee the result of the act and accepts the possibility of its occurrence, the act can be imprudence or negligent behaviour. [5]

III. Legal Damage

In Law of torts, the remedy is provided in the form of monetary compensation to the aggrieved party. Damages, is a sum of money that is imposed by the law, for the violation of some right or breach of duty. Injury is constricted to an actionable wrong whereas damage entails loss or harm occurred, which can be actionable as an injury or otherwise. “Damages” means the money that is claimed, or ordered to be paid by the court as compensation, awarded for the losses suffered or injury caused.

There are two maxims that focuses on the true significance of legal damage, which are Damnum Sine Injuria and Injuria Sine Damnum.

 A. Damnum Sine Injuria

The maxim signifies “actual loss that arises in the absence of a legal loss”, financial losses or economic losses are actual losses which are not violative to legal rights and are not actionable in tort. In cases, when damage is caused without infringement or breach of legal right, there would not be a cause of action in the court of law. This would imply that; no remedy would be present in case there is no infringement of legal rights. In such cases, the court may not grant any damages even though the act done by the wrongdoer is intentional.

In the case of Gloucester Grammar School (1410)[6], the defendant was a school teacher in the plaintiff’s school. A dispute arose between them due to which the defendant left the school and set up another rival school next to the plaintiff’s school. The defendant was well known by the students for his teaching skills because of which most of the boys joined the defendant’s school.

The plaintiff then sued the defendant for financial losses suffered by this. The courts held that the defendant was not liable. The courts mentioned that even though losses were suffered by the plaintiff, the legal right has not been violated. The school of the defendant had been set up lawfully and did not infringe any of the legal rights of the plaintiff. The plaintiff could not stop the defendant from running a business just because it stood as a competition to his school.

B. Injuria Sine Damnum

Injuria Sine Damnum is a legal maxim which suggest ‘violation of a legal right without any actual loss or damage or harm caused to the plaintiff’. Every individual is entitled to the right of his property, immunity, liberty and infringing any of these rights would be actionable per se, in this case, it is not necessary for the individual to show any special damage caused, because every injury would be considered as damage when there is a hindrance in the implementation of his legal rights.

This can provide sufficient cause of action for availing compensation. In cases of assault, false imprisonment, battery, libel, trespass on land, etc. the sole wrongful act is actionable, even when the proof of special damage is absent. The court would be bound to provide compensation to the plaintiff of at least a nominal nature, even in cases where no actual damage has been proven.

Ashby v. White (1703)[7] in this case the plaintiff was a competent and qualified voter at the parliamentary election, but the returning officer who was the defendant wrongfully refused to consider the vote of the plaintiff.  In this case, no losses were suffered by the refusal to accept the vote by the defendant as the candidate whom the plaintiff wanted to vote for, won the election.

However, the question before the court was whether one of the parties can recover damages when his civil rights is curbed by the action of another individual or not. The courts said that the plaintiff has a legal right to vote which is also a common law right, hence a hindrance to this right would give rise to a cause of action and ought to be allowed for recovery through damages.

IV. Direct Consequences

Tort liability is examined as a civil law institution, and in order for an act to constitute tort liability, all the elements should be considered and examined whether the legal provisions are met. Along with this, there needs to be a link between the wrongful act and the injury.

This is significant for two reasons- firstly, if there is an absence of a link between the wrongful act and the injury it would be similar to the inexistence of tort liability and secondly, the nature of casual link that is maintained, determines the extent of compensation that the victim would get for the injuries suffered. The defendant will not be liable for the consequences of the damages unless the wrongful action has a direct connection to the harm or the injury suffered.

Doughty v. Turner Manufacturing Co. Ltd | [1964] 1 QB 518

Doughty was an employee for the Turner Manufacturing Company (defendants). Doughty got injured due to another employee knocking a container cover which resulted in a few asbestos cements falling into a vat of molten liquid and due to chemical processes, the molten liquid resulted in an eruption of steam which injured Doughty.

Here, the question before the court was whether the employer would be held liable for the unforeseeable event. The Court of Appeal here, held the defendants not liable because the events failed the remoteness test, that a reasonable prudent man would not be able to foresee the event, the court took cognizance that the event was an unforeseeable one.

V. Remedy

‘Ubi jus ibi remedium’ is the maxim in tort law which means ‘there is no wrong without a remedy’ and is also the essence behind tort. The right that an individual possesses, can only be understood in the event of its violation, which gives rise to a legal remedy. Any right would be considered meaningless if there is no remedy to execute those rights when infringed.

The essentials of the implementation of this maxim are-

  1. when the right has been recognised by the law
  2. wrongful act has violated the legal right of a person
  3. applicable when sufficient relief has not been given by the court
  4. there has to be a legal injury. [8]

Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272. In this case, the court introduced the maxim Ubi jus ibi remedium est, and stated that the court should focus to safeguard and persevere the rights of the parties and help for the enforcement of the same.


Tort law mostly works on common sense and enables the understanding of relations between individuals in a society, to coexist in harmony, and that each individual in the society is required to fulfil certain duties towards the other individual of the society. In India, there have been various judgements by the Supreme Court which has helped in structuring the law of torts in India.

The Principles of torts have been applied in various legislations such as the Consumer Protection Act 1986, the Environment Protection Act 1986, The Motor Vehicles Act 1988. However, tort law in India is still developing as compared to the US and UK.

[1] Williams, G. L. and Hepple, B. A, Foundations of the Law of Tort (Butterworths, 2nd edn., 1985).

[2] Ellis Washington, General Principles of Tort Law, Part I (2014).

[3] Petruta-Elena Ispas, General Conditions of Tort Liability, 2014 Law Annals Titu Maiorescu

[4] Petruta-Elena Ispas, “General Conditions of Tort Liability”, 2014 Law Annals Titu Maiorescu U. 108 (2014).

[5] Petruta-Elena Ispas, General Conditions of Tort Liability, 2014 Law Annals Titu Maiorescu U. 108 (2014).

[6] (1410) YB 11 Hen IV, fo. pl. 201, 23

[7] (1703) 92 ER 126

[8] B&B Associates LLP, “Ubi Jus Ibi Remedium”

  1. Law of Torts; Notes, Case Laws And Study Material
  2. Pigeon Hole Theory – Salmond’s Theory of Law of Torts