Essential Elements of Tort

The term “tort” derives from the Latin term “tortum,” meaning twisted or crooked. Salmond defines a tort as a civil wrongdoing that can be remedied through a common law action seeking unliquidated damages. It is distinct from exclusive breaches of contract, breach of trust, or other equitable obligations.

To constitute torts, certain essential elements must be present. 

What are the Essential Elements of Tort?

As has already been stated, there are four essential elements of tort for a tort to exist. They are:

Existence of a Duty to Exercise Care

The law of torts imposes an obligation on every individual to exercise a reasonable level of care when engaging in activities that could potentially cause harm to others. To pursue a legal case, it is necessary to establish that the tortfeasor (the person responsible for the tort) owed a duty of care to the injured party and that this duty was breached. The duty of care is imposed by law and does not require a direct relationship between the tortfeasor and the injured party.

Wrongful Commission or Omission of an Act

For an act to be recognised as wrongful, it must be defined as such by law. Violating a legal provision renders an act unlawful. It is important to note that a moral wrong does not necessarily equate to a legal wrong. Merely being morally wrong is insufficient to qualify as legal wrongdoing. An act is considered unlawful only if it contravenes the law, regardless of its moral implications. Furthermore, wrongdoing must result in actual harm or legal injury to another person. The following cases exemplify this requirement:

Glasgow Corporation v. Taylor (1992)

In this Glasgow case, a corporation failed to erect proper fencing to keep children away from a poisonous tree. As a result, a child plucked and consumed fruits from the poisonous tree and died. The corporation could be held liable for this omission.

General Cleaning Corporation Ltd v. Christmas (1953)

In this case, an employer failed to provide a safety belt for a safe system of work, resulting in consequences arising from this omission.

Actual Harm or Legal Harm

For a tort claim to arise and for the tortfeasor to be held liable, the claimant must have suffered actual pain or loss as a result of the wrongdoing, or there must have been a violation of their legal rights, with or without resulting damage. 

Two maxims, injuria sine damno and damnum sine injuria, encompass the various categories of harm and/or injury covered by this crucial element of a tort.

Injuria Sine Damno

The maxim “injuria sine damno” describes an injury without damage, which is actionable under tort law. It occurs when a person experiences a legal injury without actual loss, meaning their legal right has been infringed by another individual. It signifies a violation of an absolute right without the need for actual harm.

An illustrative example of this maxim is the landmark case of Ashby v. White (1703) 92 ER 126, where Mr. Ashby, the plaintiff, was prevented from voting by Mr. White, the constable. This rule is based on the ancient maxim “Ubi jus ibi remedium,” meaning “where there is a right, there will be a remedy.”

The plaintiff was a qualified voter in a parliamentary election. The defendant, a returning officer, wrongfully refused to accept the plaintiff’s vote. Although the plaintiff suffered no damage since the candidate he wished to vote for had already won the election, the defendants were still held liable. It was concluded that damage is not limited to pecuniary loss, as injury implies damage. Therefore, when a person’s rights are hindered, they are entitled to remedies.

In another case from India, Bhim Singh v. State of Jammu and Kashmir, the plaintiff, who was a member of parliament (MP), was denied entry into the premises of the Assembly election by a police constable, thereby infringing upon his legal rights.

Damnum Sine Injuria

This maxim is the opposite of the previous one. It refers to damage without injury. In this case, the party experiences actual physical or moral loss, but there is no infringement of their legal rights. It refers to an actual and substantial loss suffered by a party without any violation of their legal rights. In such instances, the plaintiff has no cause of action since no legal rights have been transgressed.

An example of damnum sine injuria is the case of Gloucester Grammar School, where the defendant established a school in the same neighbourhood as the plaintiff’s school and even lowered the fees. This was not considered a tort case because the plaintiff suffered only a financial loss, and none of their legal rights were breached.

Legal Remedy

The law of torts provides specific legal remedies to injured parties when their rights are violated. These remedies can include monetary compensation, restitution of specific property, and court-ordered injunctions.

The Court assesses various factors of liability by applying tests such as directness and foreseeability to determine the extent of the damage suffered and whether it is too remote. Only after evaluating these factors will the Court provide relief to the claimant.

Conclusion

A tort defines a civil wrong, consisting of four essential elements: duty, wrongful act, injury, and remedy. To pursue damages for a tort, all four essential of torts must be proven. If any of these elements is missing, the tort cannot be established, and damages cannot be awarded.