TORT 002 Nature of Tortious Liability and Essential Elements of a Tort — Law of Torts Notes for Judiciary

The Nature of Tortious Liability and the Essential Elements of a Tort: Wrongful Act, Legal Damage and Legal Remedy

Three things must be present before a tort is made out, and the absence of any one of them is fatal. There must be a wrongful act or omission, meaning the breach of a duty fixed by law and not by agreement. There must be legal damage, meaning the violation of a legal right, which is not the same thing as loss. And there must be a legal remedy, which in the case of a tort is characteristically an action for unliquidated damages. The second element is where most of the argument lies, because the law protects rights and not interests: a plaintiff who has suffered heavily but whose rights were never violated has no action, and a plaintiff whose right was violated has one even if he lost nothing at all.

The three elements, the two maxims that separate right from loss, and the cases on each

1. The Nature of Tortious Liability

The duty is fixed by law. That is the distinguishing feature. In contract the parties fix their own duties; in tort the law fixes them, and the defendant is bound whether he agreed to be or not.
The duty is owed to persons generally, and not to a determinate person. The duty not to drive carelessly is owed to everyone who may be on the road.
The remedy is an action for unliquidated damages. The sum is not fixed in advance by the parties or by statute; the court assesses it. That is what marks a tort off from a debt, and from a claim on a liquidated damages clause.
Liability is ordinarily based on fault, either intention or negligence, though the law recognises a growing class of cases where it is not.
The wrong is civil, so the proceeding is brought by the injured person, the standard of proof is the preponderance of probabilities, and the object is compensation rather than punishment.
The categories are not closed. Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1, observes that in a developing society the concept of duty keeps changing, and that the law of torts, and the branch of negligence in particular, is continuously transformed by social and economic development.

2. The First Element: A Wrongful Act or Omission

It must be a breach of a legal duty, not merely of a moral or social one. A man who watches a stranger drown, being under no legal duty to rescue him, commits no tort however badly he behaves.
An act includes an omission, but only where a duty to act existed. The law of torts does not ordinarily impose a duty to confer a benefit; it imposes a duty not to cause harm. A duty to act arises from a relationship, from an undertaking, from control over a dangerous thing, or from the defendant having created the danger himself.
The act must be without lawful justification or excuse. An act that the law authorises is not wrongful, and the general defences operate at exactly this point.
Motive is ordinarily irrelevant. A lawful act does not become a tort because it was done from a bad motive, and an unlawful act is not excused by a good one. The exceptions are the torts in which malice is part of the definition, such as malicious prosecution and malicious falsehood, and the qualified privilege defence in defamation.
Intention is required for some torts and not for others. It is part of the wrong in assault, battery and deceit, and entirely irrelevant in the cases of liability without fault.

3. The Second Element: Legal Damage

Legal damage means the violation of a legal right. It is not the same as loss, and the two come apart in both directions.
Where a right is violated but no loss follows, there is still a tort. That is injuria sine damno, and torts actionable per se, such as trespass and libel, fall into this class.
Where a loss is suffered but no right is violated, there is no tort at all. That is damnum sine injuria, and no amount of loss will supply the missing element.
The maxim behind the first is ubi jus ibi remedium: where there is a right there is a remedy. It is the reasoning of Holt CJ in Ashby v. White.
The question to ask is always the same: what right of the plaintiff did the defendant violate? If the answer is none, the enquiry stops there.

4. Injuria Sine Damno: The Cases

📖 Ashby v. White (1703) 2 Ld Raym 938

Facts The plaintiff, a qualified voter at a parliamentary election, was wrongfully prevented from voting by the returning officer. The candidate for whom he wished to vote was elected in any event, so the plaintiff suffered no loss at all.

Held He was entitled to damages. The action lay although no loss had followed.

Ratio The violation of a legal right is itself the injury, and where the law gives a right it gives a remedy for its violation. In the words of Holt CJ, if the plaintiff has a right he must of necessity have a means to vindicate it, and a want of right and a want of remedy are reciprocal.

📖 Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677

Facts The petitioner, a sitting member of the Legislative Assembly, was arrested and detained by the police while on his way to attend a session of the Assembly. He was not produced before a Magistrate within the time required, and was kept out of the session. By the time the petition was heard he had been released.

Held The detention was unlawful and a violation of his rights under Articles 21 and 22(2). The Court awarded exemplary damages of Rs. 50,000 notwithstanding that he had been released and that the outcome of the Assembly vote would not have differed.

Ratio Where a person's constitutional right to liberty has been violated by the State, the Court may award monetary compensation in exercise of its jurisdiction under Article 32, and the violation of the right is itself sufficient; the plaintiff need not show consequential loss. The case applies injuria sine damno in a constitutional setting.

5. Damnum Sine Injuria: The Cases

📖 The Gloucester Grammar School case (1410) YB 11 Hen IV 47

Facts The defendant, a schoolmaster, set up a rival school next door to the plaintiff's school and attracted his pupils away by charging lower fees. The plaintiff's fees fell from forty pence a quarter to twelve.

Held No action lay. The plaintiff had suffered substantial loss, but the defendant had violated no right of his.

Ratio Lawful competition, however damaging, is not actionable. A person has no legal right to the continuance of his custom or his trade, so loss caused by a rival's lawful competition is damnum sine injuria.

Other familiar instances of the same principle include the landowner who lawfully drains percolating water under his own land and thereby dries up his neighbour's well; the trader who undersells a competitor; and the defendant who lawfully obstructs a prospect or a view, there being no natural right to either.
Motive does not convert damnum sine injuria into a tort. An act lawful in itself does not become unlawful because it was done with the object of injuring the plaintiff, save in the exceptional torts where malice is an ingredient.
The contrast between the two maxims is therefore a contrast between rights and interests. The law of torts protects rights. Interests are protected only where a right has grown up around them.

6. The Third Element: A Legal Remedy

The characteristic remedy is unliquidated damages. The court assesses the sum, and the plaintiff cannot point to any pre agreed figure.
Damages are compensatory in principle. The object is restitutio in integrum, to put the plaintiff so far as money can in the position he would have occupied had the tort not been committed.
Nominal damages mark the violation of a right where no loss has been suffered, and are the practical expression of injuria sine damno.
Contemptuous damages mark a case where the right existed but the claim should not have been brought.
Exemplary or punitive damages go beyond compensation, and Bhim Singh is an instance in the constitutional setting.
Other remedies exist, and in some torts matter more than damages: an injunction in nuisance, specific restitution of property in trespass and conversion, and the extrajudicial remedies of abatement, re entry and recaption of goods.
And under the Constitution, compensation may be awarded in a petition under Article 32 or Article 226, as a remedy in public law distinct from the ordinary civil suit.

7. Tort as a Civil Wrong

The feature	Tort	Why it follows
Who sues	The injured person, in his own name	The wrong is to him, not to the public
The object	Compensation	The loss is shifted from the plaintiff to the defendant
The standard of proof	The preponderance of probabilities	It is a civil proceeding
The sum	Unliquidated, assessed by the court	No agreement and no statute fixes it in advance
Settlement	The claim may be compromised or waived	The right belongs to the plaintiff
Death of a party	Governed by the maxim actio personalis moritur cum persona, as modified by statute	The Fatal Accidents Act, 1855 and the Legal Representatives Suits Act, 1855 cut the maxim back
Limitation	Ordinarily one to three years, by the article that fits the particular tort	The Limitation Act, 1963, Articles 68 to 91 and the residuary Article 113

8. Where the Elements Fail

⚠ The commonest reasons a claim in tort does not get off the ground

A claim fails at the first element where the duty the defendant is said to have broken was moral rather than legal, or where it was owed only under a contract to somebody else. It fails at the second where the plaintiff proves loss but cannot identify the right that was violated, which is the answer to most claims arising out of lawful competition, lawful business decisions, and the lawful use of one's own property. It fails at the third where the wrong, though real, carries no remedy in damages, as where the only sanction the law provides is a penalty payable to the State. And it fails outside the elements altogether where a general defence applies: volenti non fit injuria, inevitable accident, act of God, private defence, necessity, statutory authority, or the plaintiff's own wrong.

9. The Position Stated Shortly

1. A tort requires a wrongful act or omission, legal damage, and a legal remedy in the form of an action for unliquidated damages.

2. The duty broken must be one fixed by law, owed to persons generally, and not merely a moral or social obligation.

3. An omission is actionable only where the law imposed a duty to act.

4. Legal damage means the violation of a legal right, which is not the same as loss.

5. Injuria sine damno is the violation of a right without loss, and it is actionable: Ashby v. White; Bhim Singh v. State of Jammu and Kashmir.

6. Damnum sine injuria is loss without the violation of a right, and it is not actionable: the Gloucester Grammar School case.

7. The maxim ubi jus ibi remedium supplies the reasoning for the first, and motive does not convert the second into a tort.

8. The characteristic remedy is unliquidated damages, assessed by the court on the principle of restitutio in integrum.

9. Nominal, contemptuous and exemplary damages, injunctions, specific restitution and the extrajudicial remedies are all available in their proper cases.

10. A tort is a civil wrong: the injured person sues, the standard of proof is the preponderance of probabilities, and the object is compensation and not punishment.