A tort is a civil wrong that causes the injured party to suffer loss and damages and create legal liability for the person who has committed the tortious act. In order to make an offence fall under the category of tort the following points must satisfy:
- There must be some act or omission on the part of the defendant
- The act or omission should result in legal damage (injuria), i.e., violation of a legal right vested in the plaintiff.
- Presence of a legal remedy.
WRONGFUL ACT + LEGAL DAMAGE + LEGAL REMEDY = TORT
Act or Omission
In order to make a person liable, there has been some act or omission on his part. The offender must have acted in a way that is illegal or must have omitted to do something that he should have done. A positive wrongful act or omission which is illegally made will make the person liable. Defaming someone or wrongfully detaining another person is considered tort because they are acts committed by a person. On the other hand, if a person is supposed to do a legal duty and fails to perform it then he can be made liable for such omission. It has to keep in mind that the illegal act or wrongful omission must be recognized by law. A person cannot be held liable for mere moral or social wrong. For example, it is a general practice that while entering into a temple people should remove their footwear, but if a person doesn’t remove it then also, he has committed no offence.
Legal damage is the second vital ingredient in constituting a tort. Damage means the harm or loss suffered or assumed to be suffered by a person as a result of some wrongful act done by another person. The sum of money which is awarded by the Court to compensate ‘damage’ is called “damages”. In order to make an offence come under tort, it has to be proved that there was a wrongful act or an omission causing a breach of a legal duty or the violation of the legal right vested in the plaintiff. If there is no legal damage, then there can be no action under the law of torts. The same can be understood with the help of two maxims.
- Injuria sine damno
- Damnum sine injuria
Injuria sine damnum
It means that there is a violation of a legal right without causing any harm, loss or damage to the plaintiff. Here the suit is maintainable even if the plaintiff has suffered no damages. In the case Ashby v. white, the plaintiff was a qualified voter and the defendant rejected his vote. Hence, the legal right of the plaintiff was violated. In another case, Marzetti v. Williams, the banker refused to honour the cheque of the customer although the banker had sufficient funds in his hand. Here the customer did not sustain any actual loss or damage, the banker was held liable because there was an infringement of a legal right.
Damnum sine injuria
In cases of damnum sine injuria, there is an actual and substantial loss without infringement of any legal right and hence no action lies. Mere loss in money or money’s worth does not of itself constitute a tort. The most terrible harm may be inflicted by one person on another without legal redress being available. There are many acts that, though harmful, are wrongful and give no right of action. “Damnum” may be absque injuria. In Gloucester v Grammar School, the defendant set up a rival school to that of the plaintiff with a result, the plaintiff was forced to reduce tuition fees substantially as the students were moving out. Plaintiff filed to claim damages. It was held that the plaintiff had no cause of action on the ground that “bona fide” competition can afford no ground for action.
In tort, the wrongful act must come under the category of wrongs for which the remedy is available for damages. Legal remedy is the third vital ingredient for an action in tort. A tort is civil harm, but all civil harms are not torts. The important remedy for a tort is an action for damages but there are other remedies also for example injunction. It may be obtained in addition to damages in certain cases of wrongs or an action by the plaintiff himself without going to the court, that is self-help.
Ubi Jus Ibi Remedium
The law of torts has developed from the maxim “ubi jus ibi remedium” which means that there is no wrong without a remedy, Jus, means ‘the legal authority to do or to demand something’ and ‘remedium‘ signifies the right of action or the means given by law for the recovery or assertion of a right.
We can also look upon this maxim which says-‘Where there is a right, there is a remedy’.
- (1703) 2 Lord Raym, 938; (1703) 1 Sm. L.C. 13th ed., 253; Tozer v. Child (1457) 7 E. & B. 377 is a similar decision in respect of municipal elections.
- (1410) Y.B. Hill 11 Hen, 4 of 47, p. 21, 36.
- R.K Bangia