Elements of tort

Torts are wrongdoings that are done by one party against another. As a result of the wrongdoing,
the injured person may take civil action against the other party. To simplify this, let's say while
walking down the aisle of a grocery store, you slip on a banana that had fallen from a shelf. You
become the plaintiff, or injured party, and the grocery store is considered the tort feasor or
defendant, the negligent party.

Simply said, you would probably take civil action against the grocery store to recoup
compensation for pain, suffering, medical bills and expenses incurred as a result of the fall.
Negligence is just one tort category. There are three general categories of torts. Regardless of the
tort action, three elements must be present:

Tort feasor, or defendant, had a duty to act or behave in a certain way.

Plaintiff must prove that the behavior demonstrated by the tortfeasor did not conform to the duty
owed to the plaintiff.

The plaintiff suffered an injury or loss as a result.

Injuria sine Damnum ‘

The word ‘ damnum ‘ means damage . This damage may be loss of health , loss of service ,
physical hurt and loss of money or the like . The word ‘ injuria’ means a legal injury or tortuous
act or an infringement of legal right . And the word ‘sine ‘means without . So the maxim means
that an infringement of any legal right without damage. Where there is infringement of legal
right , action lies against that act . Therefore ,if any legal right is infringed , it is immaterial
whether any loss is suatained or not , this maxim ‘injuria sine damnum ‘affords right to sue for
legal remedy .

According to this maxim whenever there is an invasion of a legal right , the person in whom the
right is vested , is entitled to bring an action though he has suffered no actual harm and may
recover damages . It is sufficient to show that there is violation of a legal right and the law will
presume damage . On the strength of this maxim the libel , assault , battery , false imprisonment
and trespass on land or the mere wrongful acts are actionable without proof of special damage .

In India , the same principles have been followed . It is not necessary to show any damage if the
legal right is infringed . Violation of a legal right gives rise to a legal action .

As for example , in an interesting American case of Morningstar Vs. Fafayette Hotel Company,
the plaintiff , who was a guest at the defendant’s hotel , was fed up with the food served at the
hotel , and so , he purchased some spare ribs outside the hotel , and gave them to the hotel chef to
be cooked and brought to his room . This was done . But the spare ribs were accompanied by a

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bill for one dollar which the plaintiff refused to pay . On the following morning , the plaintiff
was publicly informed at the table of breakfast tha1t he would not be served .

The plaintiff sued for wrongful refusal to serve breakfast to him and the Court held that his
legal right had been infringed .

Ashby v. White
is a leading case explaining the maxim injuria sine damno, in which the plaintiff was wrongfully
prevented from exercising his vote by the defendants, returning officers in parliamentary
election. The candidate from whom the plaintiff wanted to give his vote had come out
successful in the election. Still the plaintiff brought an action claiming damages against the
defendants for maliciously preventing him from exercising his statutory right of voting in
that election. The plaintiff was allowed damages by Lord Holt saying that there was the
infringement of a legal right vested in the plaintiff.

Bhim Singh v. State of J. & K,

the petitioner, an M.L.A of J & K Assembly, was wrongfully detained by the police while he was
going to attend the Assembly session. He was not produced before the magistrate within
requisite period. As a consequence of thus, the member was deprived of his constitutional right
to attend the Assembly session. There was violation of fundamental right to personal liberty
guaranteed under Article 21 of the constitution. By the time petition was decided by the supreme
court, Bhim Singh had been released, but by way of consequential relief, exemplary damages
amounting to Rs. 50000were awarded to him.

Marzetti v. Williams
this case is also known as the banker‘s case. In this case action will lieagainst a banker having
sufficient funds in his hands belonging to a customer, or refusing tohonour his cheque, although
the customer did not thereby sustain any actual loss or damage.

Damnum sine injuria

It means damage which is not coupled with an unauthorized interference with the
plaintiff‘s
lawful right. Causing of damage, however substantial, to another person is not actionable in law
unless there is also violation of a legal right of the plaintiff. This is generally so when the
exercise of legal right by one results in consequential harm to the other.
―
The mere fact that a man is injured by
another‘s
act gives in itself no cause of action; if the act is deliberate the party injured will have no claim
in law even though the injury is intentional, so long as the other party is exercising a legal
right.‖
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8

There are many acts which though harmful are not wrongful and give no right of action to him
who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or
damage without injury. Damage without breach of a legal right will not constitute a tort. They
are instances of damage suffered from justifiable acts. An act or omission committed with lawful
justification or excuse will not be a cause of action though it results in harm to another as a
combination in furtherance of
trade interest or lawful user of one‘s
own premises. Here in the maxim the word damnum means that damage is there in the act but
the word sine injuria means that there is not any violation of legal right.

Gloucester Grammar School Case

There the defendant, a schoolmaster, set up a rival school to that of plaintiffs. Because of the
competition, the plaintiff has to reduce their fees from 40 pence to 12 pence per scholar per
quarter. It was held that the plaintiff had no remedy for the los thus suffered by them.

Bradford Corporation (Mayor of) v. Pickles,

the plaintiff had been deriving water from the adjoining land of the defendant which was at a
higher level. The defendant sank a shaft over his own land which diminished and discoloured the
water flowing to the land of the plaintiffs. The sinking the shaft alleging that the sole purpose of
the same was to injure the plaintiffs as they did not purchase his land at an exorbitant price. The
House of Lords held that since the defendant was exercising his lawful right, he could not be
made liable even though the act which injured the plaintiff was done maliciously.

In Acton v. Blundell
, in which a mill owner drained off underground water running into the
plaintiff‘s well, fully illustrate that no action
liesfrom mere damage,however substantial ,caused without the violation of some right.

In the case of Mogul Steamship Co. v. 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. There are
moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Loss
or detriment is not a good ground of action unless it is the result of a species of wrong of which
the law takes no cognizance.

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Dr R K Bangia, Law of Torts,23(2012)
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Distinction between Injuria sine damnum and Damnum sine injuria
First on the basis of meaning, Injuria sine damunm means violation of a legal right without
actual loss or damages where as Damnum sine injuria means actual or substantial Damages
without infringement of a legal right.

Second on the basis of action, Injuria sine damunm is always actionable where as Damnum sine
injuria is never actionable.

Third on the basis of nature of wrong, Injuria sine damunm contemplates legal wrongs where
there is a remedy where as Damnum sine injuria contemplates only moral wrongs without
any remedy.

Fourth on the basis of act of defehdent, In Injuria sine damunm defendant acts illegally to violate legal
right of the plaintiff where as In Damnum sine injuria defendant acts legally and thereby causes
harm to the plaintiff.

Other elements of tort In certain cases, the following may form part of requirements for a wrong
to be tortuous.
1. Voluntary and involuntary acts: acts and omissions may be voluntary or involuntary.
An involuntary act does not give rise to liability in tort.

2. Mental elements: Plaintiff may be required to show some fault on the part of the
defendant. Fault here means failure to live up to some ideal standard of conduct set by law.

3. Malice: In the popular sense, malice means ill-will or spite.

In Law, it means i) intentional doing of a wrongful act and, ii) improper motive. Thus a
wrongful act done out of malice is an act done wrongfully and without reasonable and
probable cause, dictated by anger or vindictive malice.
b) Intention: i.e. where a person does a wrongful act knowing the possible consequences
likely to arise, he is said to have intended that act, and is therefore at fault.
c) Recklessness: i.e. where a person does an act without caring what its consequences might
be, he is at fault.
d) Negligence: i.e. where the circumstances are such that a person ought to have foreseen
consequences of his act and avoided it altogether, he would be at fault if he bothers not.
e) Motive: Motive is the ulterior objective or purpose of doing an act and differs from
intention. Intention relates to the immediate objective of an act while motive relates to the
ulterior objective. Motive also refers to some personal benefit or satisfaction which the actor
desires whereas intention need not be so related to the actor. An act which does no amount to
legal injury cannot be actionable because it is done with a bad motive it is the act, not the
motive for the act that must be regarded. If the act apart from motive gives rise merely to
damage without legal injury, the motive, however reprehensible it may be, will not supply

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 that element. The exceptional cases where motive is relevant as an ingredient are torts of
malicious prosecution, malicious abuse of process and malicious falsehood.

3. Malfeasance, misfeasance and non-feasance: ‘Malfeasance‟ refers to the

commission of a wrongful act which is actionable per-se and do not require proof of
intention or motive. „Misfeasance‟ is applicable to improper performance of some lawful
act, for example, where there is negligence. ‟Non-feasance‟ refers to the omission to
perform some act where there is an obligation to perform it. Non-feasance of a gratuitous
undertaking does not impose liability, but misfeasance does.

http://dl4a.org/uploads/pdf/LAW_OF_TORT_S__REVISED%20FOR%20DCM.pdf

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