The previous chapter introduced you to the concept of a tort.
It is the failure to perform a legal duty ( A legal duty is the duty that the law requires us to do. And if we fail to perform our legal duty, it entails consequences. These consequences are referred to as liability. When you are answerable for a wrong committed by you and the law can take action against you, it is called liability).
As we have discussed, we have many duties and failure to perform all of these duties will not lead to a tort. When you do not go to pray, you have not performed your religious duty. But that does not make you accountable before the law.
It has to be a legal duty which is breached.( A breach means not obeying and breaking a law either by not doing something that the law requires you to do or by doing something that must not be done).
Legal rights and duties are correlated. We all have rights and at the same time we need to ensure that we do not take away or violate someone else’s rights. This is our legal duty. When we fail to perform or incorrectly perform our legal duties, we end up violating someone else’s rights and in turn commit a tort.
This chapter talks about the different elements required for an act to be a tort.
- THE ESSENTIAL ELEMENTS OF A TORT
Tort law is there to make the people adhere to the reasonable and appropriate behavior that is expected of them. It is there to make people respect the rights of other people around them.
The elements required for any act to be a tort are as follows:
- Wrongful act
- Damage( Legal injury)
Now, explaining them in detail,
- Wrongful act
A wrongful act is any act which is tortuous ( it is an infringement upon another person’s legal rights).
We all have not only rights but also corresponding legal duties.
This duty can be either in the form of doing an act or it may be from refraining from an act. If this duty is not performed it becomes a wrongful act giving rise to a legal injury which in turn gives rise to a claim in torts and an action for damages.
A wrongful act must be committed for a tort to take place .It can happen in two ways:
- Commission of the act: Such an act which is actually committed. When you play music at a very loud volume and disturb others. The disturbance has been overtly done.
- Omission: This includes acts which should have been done but were not done.
Eg. The municipality dug a hole on the road and it failed to either put a barrier around it or a signboard stating about it. At night a person falls into it. This is a tort due to omission.
Any tortuous act is either commission or omission or a combination of both of these. And in questions you need to figure out whether the act falls under either one.
- Damage or injury caused:
Damage is the harm or loss suffered by a person because of a tortuous act of another person.
Damage to a person can be in terms of loss of money, service, health (physical or emotional health), etc. There are two maxims that help us to determine whether a party has a valid claim in tort law i.e. whether he can take a person to court for a tort. They are :
- Injuria Sine Damnum
- Damnum Sine Injuria
Before we proceed to the meaning of these maxims, let us understand what ‘injuria’ and ‘damnum’ mean.
- Injuria: ‘Injuria’ is referred to as the ‘legal injury’. It is the violation of the plaintiff’s legal right irrespective of the fact that it is a very trivial infringement or that it does not cause any real harm to the plaintiff(injured party.) When a person fails to perform his duty or does something that he is not supposed to do, his act causes injury. And even if there is no actual damage, it is enough if the person violates another person’s legal right. A crosses over a barren piece of land belonging to B , it is the tort of trespass. In this case, no actual harm has been caused but there is a legal injury. So, damages will be awarded.
2.Damnum: ‘Damnum’ is referred to as the damage or harm caused. Any loss whether in terms of health ,money, comfort or in any other form comes under damnum. It is the effect felt by the plaintiff due to the act of the defendant which had injuria.
Injuria sine damnum
This phrase consists of three words –‘injuria’ (injury),’sine’(without) and ‘damnum’(damage)
It means a legal injury without any actual damages. It is the violation of a person’s legal right without causing any real harm or damage.
This is a valid claim in tort law. In such cases the plaintiff can successfully sue the defendant for violating his legal rights and no damages need to be proved.
To sum up, a person can sue as long as his legal right is violated irrespective of whether or not actual damage is caused.
Let us take a few examples.
a.Tresspass to a person’s property is an infringement of his legal right to property and is actionable in itself. If you set foot on someone’s property and just walk over it, there is no damage.
But trespass does not require damage to be proved and the plaintiff will be awarded damages. Tresspass also includes trespass to person such as assault, battery, false imprisonment etc.
- Stopping someone from going in a particular direction using a particular route. Here, even if an alternative route is there and the person reaches his destination, it does not matter. He can still sue because he has a right to use whichever route he likes.
- Stopping someone to address a gathering is the violation of a person’s legal right as well as the fundamental right to freedom of speech and expression. So, even if in the end the message is circulated using a pamphlet and no damage is caused, it does not matter. He can still sue successfully because damage is not required. What is required is the violation of a legal right.
Damnum sine injuria
Simply put it means damage without any legal injury. In this case a person ends up causing damage to a person without violating his legal rights and without falling short of his own legal duty.
There is a damage caused but there is no remedy available for the other person.
In cases of damnum sine injuria, a person cannot sue the wrongdoer because he has not violated any legal rights. And thus, there is no remedy available to the plaintiff.
So, the rule is – A legal injury is a must otherwise a person cannot sue no matter how much damage is caused by the act.
Example : Honey likes to sing while having a bath every morning and this disturbs his neighbour Vivek who has really sensitive ears and is trying to meditate and is unable to concentrate due to Honey’s singing. In this case, Vivek will not be able to sue Honey because he is singing at a reasonable volume. There is no legal injury caused, so even if there is any damage , there lies no remedy.
3. IS HARM OR INJURY NECESSARY FOR AN ACT TO BE A TORT?
No, harm is not necessary for an action to be a tort. There are three kinds of torts recognised by law on this basis:
Torts actionable per se.
These are those torts which happen when a person infringes upon another person’s rights by not performing his legal duty.
These torts are actionable by themselves . i.e. they do not require any harm or damage to be done.
Here, again I will give the popular example of tort of trespass.
You just walk over a person’s land and that is it. No harm is caused. Yet, it is a tort and is actionable in itself. There is no need for damage to be proved.
Torts that are co-relative to the harm caused
These are torts in which a person not only fails to carry out his legal duty, but also causes harm/damage at the same time.
In such cases, compensation is provided according to the damage caused. Compensation in such cases tries to restore the plaintiff to the original position.
Example: In negligence there is damage caused. When a person is driving a car at a greater speed than is reasonable and he causes an accident, he has failed to care for his legal duty by performing a negligent act.
At the same time, he causes harm to the other people who are injured in the accident. In such a case, compensation will be given so as to restore the plaintiffs to the original position.( It will cover the medical bill and the losses caused to the injured people) .
- Torts for which there lies no action
Sometimes, there is no remedy available when a tort is committed even if there is a violation of a person’s legal right and damages have occurred.
This seems a little unjust but some torts have no remedy and recourse to law will not yield any result.
This is best illustrated by the torts which are done by the state while discharging sovereign functions.
If the government takes away a person’s land in a border area for providing a training field to the soldiers, in such a case even though the person’s legal right is violated and he has suffered damage, he cannot sue the State or the Army as they are performing a sovereign function of protecting the country and defending it in wartime.
( A sovereign function is an exclusive function of the state which cannot be performed by a private individual or organisation.
Example :Space, atomic energy, defence, police ,etc.)
In most such cases a person cannot sue because a general defence operates against him.
One other area where a person cannot sue for a tort against him is in case of an illegal act.
Example, Don and Rajan decide to blow up the Parliament, and while doing so Don hurts Rajan . In this case, Rajan will not be able to sue Don because they were doing an unlawful act.
- REMEDY IN TORTS
Tort law grants remedy to a person not just because he/ she has suffered damages but because the person’s legal rights have been violated or because someone has failed to perform his legal duty.
That is why damage may or may not be there, as long as a legal injury is there, a remedy is available.
The remedy is in the form of unliquidated damages. In certain cases, it is in the form of an injunction order passed by the court and in certain cases, it is in the form of restitution.
To make concepts more clear, let us understand some basics well.
When a case is filed, it is in the form of
Plaintiff vs Defendant
- Plaintiff and Defendant:
Plaintiff is the person to whom the damage or injury is caused. The plaintiff is the party that brings up the case and sues for damages. To sue means to file a case against the wrongdoer and drag him to the court.
Defendant is the person against whom the case is brought to court. It is the party being sued.
A is walking on the road and he falls into a ditch dug by B. He brings up a case against B for being negligent and not putting up a signboard or light for any precaution.
Here, it is A who brings up the case. He is the person seeking damages for his injury. He is the plaintiff. And B is the party against whom the suit has been instituted. Therefore, B is the defendant here.
- Tortfeasor: The person who commits the wrongful act is called the tortfeasor or wrongdoer. If X trespasses into his neighbours garden, X is the tortfeasor.
- Tortuous Act: The wrongful act which causes legal injury to another person and gives rise to a tort is called the tortuous act. When Sumit plays music at an unreasonable volume and disturbs the entire neighbourhood, then he commits a tort and he is called the tortfeasor, his act of playing music at a very high volume is called the tortuous act.
- DAMAGE AND DAMAGES
Damage refers to the harm or loss suffered by a person because of the wrongful act committed by another person.
The compensation that the court awards to the plaintiff for the legal injury or damage suffered is referred to as damages.
Damages can be in the form of money, an injunction order passed by the court or restitution. And damages depend upon the amount of harm caused to the person. We will talk about the types of damages and its different aspects in detail in the chapter on Remedy in torts. Time to look at an example now.
Bhim punches Karan without any reason and hurts him badly.The hurt is the physical damage caused. Bhim has committed the tort of battery against Karan and when Karan brings a case, Bhim will have to compensate for the physical as well as the legal injury caused by paying compensation to Karan. This compensation is to restore Karan to the original position as would be if the tort would never have happened. This compensation is called Damages.
An injunction is a judicial remedy issued in order to prohibit a party from doing or continuing to do a certain activity.
It is a court order by which an individual is required to perform, or is restrained from performing a particular act. It is an extraordinary remedy reserved for special circumstances in which the temporary preservation of status quo is necessary. An injunction is ordinarily and primarily elicited from other proceedings.
For example, if a landlord brings an action against the tenant for dumping of waste on his land, then the issue is to protect the landlord’s interest in the ownership of the land.
In such a case the court can pass an injunction order against the tenant to not use the property in such a way that is harmful. The injunction is, thus, an ancillary remedy in an action against the tenant. Whether or not injunction will be granted depends on the facts of the case and also, on the courts.
Injunctions (for our purpose) are of four types:
- Preliminary or Temporary injunction: It is invoked for immediate relief to preserve the subject matter of the injunction in its existing condition.
- Preventive injunction: It is a prohibitory order which is issued to defendant to refrain from doing a certain act so as to stop any further damage.
Example: If a person plays very loud music everyday and disturbs the entire neighbourhood, the court may ask him to stop playing loud music at all.
- Mandatory injunction: It is issued by the courts to make a person perform a positive act. Example – If a structure is encroaching on someone’s property, the courts may ask it to be removed.
- Permanent/Perpetual injunction: It is granted to finally dispose of a suit for injunction.
For instance, the courts issued an injunction to stop the illegal practice of medicine.
Restitution is a remedy that aims to restore to the innocent party the gains which someone else has made at the affected parties’ cost.
When a court orders restitution, it orders the defendant to return back the gains he has received from the other party.
It is different from compensation as in compensation, the court orders the defendant to pay the plaintiff for the loss suffered. And in restitution, the court orders the thing itself to be returned back. But both aim to restore the affected party to the original position.
Restitution is in place so that no one can benefit unjustly at the cost of another. Here, it is important to note that in torts the remedy is mainly in the form of compensation. An injunction is granted in certain cases only and not all. And restitution is granted mostly in contract law.
Raju, a boy of 14 goes to a nearby shop and takes a cycle. The owner of the shop Mr. Gupta knows Raju’s family. Raju tells him that his brother will pay for the cycle and he takes it and goes away.
When Raju’s brother goes to the shop and Mr Gupta asks him to pay, he refuses saying that Raju is responsible for his act.Mr Gupta brings a case against Raju.The court will order him to return the cycle back to the shopowner. This is restitution. The court will order him to return it back following the principle that no one should be allowed to benefit art the cost of others. This is also to ensure that the law is fair to everyone.
POINTS TO REMEMBER
- The essentials of a tort are :
- A wrongful act which may be in the form of a commission(doing a wrongful act ) or an omission( failure to do an act required to be done)
- There must be a legal injury.
An act which is a legal injury may or may not have any accompanying damage with it but it will still be compensated for as it is an infringement of a legal right.
- Two terms associated with damages are :
- Injuria sine damnum: Acts which cause a legal injury without any damages. There is a remedy available and the wrongdoer will be held liable.
- Damnum sine injuria: It means a damage is caused without cauing any legal injury. No action for this lies in tort law.
- Malice and intention are usually irrelevant in torts. Only some torts like malicious prosecution require a malicious intent.
- Plaintiff is the person who sues .The plaintiff is the injured party.
- Defendant is the party that is sued. The suit is instituted against him.
- Tortfeasor is the person who commits the tort.
- A tort is a violation of a right in rem. A ‘’right in rem’’ is a right vested in a determinate person, either as a member of the community or personally.
A contract is a violation of a ‘’right in personam’’. A “right in personam’’ is a right that one has against any determinate person, and the world at large is not concerned.
- Injunction is an ancillary remedy granted in certain cases.
- Restitution is a remedy where a person is restored back to the original position. The courts order restitution to ensure that no one benefits at the cost of others.
- Damage is the harm caused while damages means compensation or relief granted by the courts to the injured party.