Constituents of Tort

The law of tort is an instrument to enforce reasonable behavior and respect the rights and interests of one another. A protected interest gives rise to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is wrongful act but not every wrongful act is a tort.

To constitute a tort or civil injury therefore:

There must be a wrongful act or omission.
The wrongful act or omission must give rise to legal damage or actual damage and;
The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.

The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff.

01. Wrongful Act

An act or omission that prejudicially affect one’s legal right. Such legally violative wrongful act is called as actus reus. Thus, liability for a tort arises when the wrongful act amounts to either an infringement of a legal private right or a breach.

An act, which at first, appears to be innocent may become tortuous if it invades the legal right of another person e.g. the erection in one’s own land which obstructs light to a neighbors’ house. Liability for a tort arises when the wrongful act amounts to an infringement of a legal right or a breach.

02. Damage

The sum of money awarded by court to compensate damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage.

The real significance of legal damage is illustrated by two maxims namely:
Injuria sine damno and Damnum sine injuria

Injuria sine damno (Injury without damage)

It means violating of a legal right without causing any harm, loss or damage to the plaintiff. There are two kinds of torts: firstly those torts which are actionable per se, i.e. actionable without the proof of any damage or loss. For instance, trespass to land, is actionable even though no damage has been caused as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused by an act. For successful actions the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e. there is injuria.

Case Law: Refusal to register a voter was held as and injury per-se even when the favorite candidate won the election - Ashby Vs. White (1703). This rule is based on the old maxim of law, Ubi jus ibi remedium, which means that where there is a right, there is a remedy.

Damnum sine injuria (Damage without injury)

It means “There may be an injury inflicted without any act of injustice.” There is another term like it that is “damnum absque injuria“, which means damage or harm without an injury in the legal sense. In other words a loss or injury to someone which does not give that person a right to sue the person causing the loss.

Case Laws:

In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the water of the Corporation, which percolated through his land. The House of Lords held that the action of Pickles was lawful and no matter how ill his motive might be he had a right to act on his land in any manner that so pleases him.

In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers who would deal with them. The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by their act. The court held that a trader who is ruined by legitimate competition of his rivals could not get damages in tort.

03. Remedy – Development of Ubi jus ibi Remedium

The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong without a remedy). Whenever the common law gives a right or prohibits an injury, it also gives a remedy. It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy.

The maxim means only that legal wrong and legal remedy are correlative terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for a tort is an action for damages, but there are other remedies also e.g., injunction, restitution, etc.

Case Law:

In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred debt but there is no remedy to recover it.