To constitute tort following elements are essential-
1) Wrongful act committed by defendant
2) This wrongful act must have resulted in legal damage of plaintiff, i.e. injury to legal right of plaintiff.
3) There is legal remedy in the form of an action unliquidated damages.
Act/Omission and a Breach of Duty: For comprising a Tort there should be a wrongful act be it a negative or a positive one.
- For an act to be a wrongful act or omission( failure to perform an act agreed to) there must be some breach of duty according to the law, a man can decide to perform or not to perform certain activity but it is his duty to perform it according to the law or as a reasonably prudent man.
- For example a 10 year old boy name Ram while playing with his friends on his school’s terrace falls and dies so the school will be held liable for such a recklessness and neglect because it was on school’s part to take proper care of all the students. A man cannot be held liable if the wrongful act is social or a moral wrong, unless some legal duty can be proved.
Legitimate Damage: As I said earlier to call it a tort it is important to prove that the breach of some legal duty took place. If a man suffered damages he/she can seek relief from the court of law by proving that he/she has suffered some kind of damage, to understand Legitimate damage we can take help of the following legal maxims:
- Injuria sine damnum:
“Injuria sine damnum” it’s a latin word for “loss or damage without injury”. “Injuria” means interference with the rights of others and “damnum” means some or the other kind or harm or loss suffered by a man in terms of money, comfort, health etc . If there is a violation of legal right but no damages has been suffered still a man can approach the court.
In a famous case of Ashby v. White, the plaintiff was kept in detention by the defendant, a returning officer. During that time parliamentary election was going on and the plaintiff was qualified as a voter at the parliamentary election but because of the defendant the plaintiff couldn’t vote and his voting right was violated. The plaintiff sued the defendant for violation of his legal right but as we all know if there is a right there is a remedy.
In a similar case of BhimSinghv. Stateof J&K, the plaintiff was an MLA of J&K who was detained wrongfully by the police officer while he was going to attend Assembly session. The basic fundamental right of an individual freedom was violated and moreover, the police didn’t present him in front of the magistrate within the expected time frame. The wrongful and malicious act of the defendant was actionable so court awarded exemplary damages of Rs 50,000 to Bhim Singh.
- Damnum sine injuria:
In this legal maxim it means that the damages are suffered but there is no breach of duty towards the party who has suffered the damages and we know for a Tort it is important to prove that the breach of some legal duty took place.Let’s understand this other way remember the school in which the student name Ankush died so one of the neighbour thought to build a school and when he did so the rival school has to lower the fees and many students took admission in the neighbour’s school that way rival school suffered damaged but legally there is no remedy available for those losses that is suffered because there is no breach of duty by the neighbour. The neighbour has not done anything wrong in the eyes of law or violated any law, he was just exercising his legal rights.
Legal remedy :
The wrongful act of the defendant must come under category of wrongs for which the remedy is civil action for damages. The essential remedy for tort is an action. For damages but there are other remedies also, e.g. injunction obtained in addition to damages in certain cases of wrong. The law of tort is said to be a development of maxim “ubi jus ibi remedium” that there is no wroit without a remedy. If a man has a right he must of necessity have a means to vindicte and maintain it and a remedy it it is injured in exercise or enjoyment of it. It is in vain to imagine right without remedy. Thus where there is no legal remedy, there is no legal wrong. If out of above three elements ,any element is absent or missing, then there is no tort. Wrongful act and legal damages goes hand in hand. Legal damage means violation or infringement of legal right.