The Essential Elements of the Law of Tort: A Comprehensive Guide

What is Tort

Overview

A Tort is considered to be that legal concept possessing the characteristics to be listed here namely:

A civil right not in itself consensual in character although sometimes connected with, or even arising from, a consensual transaction; a violation of such right by omission or commission resulting in the breach of a civil duty; and damage resulting from the breach of duty which is of such a character as to afford a right of redress at law, 

The term “tort” has been held to mean a private wrong, that is, an infringement or privation of the private or civil rights belonging to individuals, considered as individuals. A tort has also been described as being a private injury, the latter phrase considered as being equivalent to a private wrong. 

Meaning of ‘Tort’ 

The word comes into our language through the French and is derived from the Latin “torquere” to twist, “tortus” twisted, or wrested aside.

Definition of ‘Tort’ 

‘Tort’ has not been comprehensively defined by any scholar, yet some meaningful definitions have been put forth by various eminent jurists. Some of them are given below: 

(1) Winfield 

“Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an act for unliquidated damages.” 

(2) John Salmond 

A tort is “a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation.” 

(3) John G. Fleming

In very general terms, a tort is a civil wrong other than a breach of contract that the law will redress by an award of damages.

(4) Underhill:

A tort is an act or omission which is unauthorized by law and independently of contract.

(i) Infringes either:

(ii) Gives rise to an action for damages at the suit of the injured party.” 

Importance of Law of Tort:

 Public functionaries taking law into their own hands are not proceeding in terms of the law. Awarding damages to an aggrieved person is the need of the day. Such a process can only save the nation and people from destruction. if the Law of Tort is established in the country, public functionaries and other authorities would run the country smoothly.  [2004 YLR 999     Lahore]

Government is liable for Tortious acts of its officers and employees if such acts are either ratified by the Government or when Government derives any benefit from such acts. 1999 YLR 955

The Essential Elements of Tort 

Elements of Torts have been broadly classified into two categories, general/physical and mental elements. Thus, to establish a case of tort, the following must be proved:

1. Duty of care: The defendant (the party being sued) owed a duty of care to the plaintiff (the party bringing the lawsuit). This means that the defendant had a legal obligation to act in a certain way or to take certain precautions to prevent harm to the plaintiff. or A right must exist in favor of the aggrieved person;
2. Breach of duty: The defendant breached their duty of care by failing to act in the required way or to take the necessary precautions. Action for breach of a statutory duty is an action in Tort and not by way of an action for breach of contract.
3. Causation of Damages: The defendant's breach of duty caused the plaintiff's injury or loss and the plaintiff suffered damages (injury or loss) as a result of the defendant's actions.
4. Remedy: The wrongful act must give rise to a remedy at law

In order to succeed in a tort lawsuit, the plaintiff must be able to prove all of these elements. If the plaintiff is able to do so, they may be entitled to compensation (damages) from the defendant to compensate them for their injury or loss.

You can also read Kinds of Tort here

Explanation of Essential Elements of Tort

(1) Existence of legal right and duty 

One essential element in a tort is the existence of a duty imposed by statute or otherwise in favor of the party injured and on the party whose conduct produces the injury; or, approaching the matter from another angle, there must be some legal right, in the party injured, claimed to have been affected by the conduct complained of, in order to constitute a tort.

The rights and duties on which tort may be predicated are such only as are recognized and enforced at law. The fact that a case is of novel impression is not conclusive against the existence of a tort. 

Rights and duties of a purely moral character are not such rights and duties as afford a basis for tort. Conduct, even though improper and causing harm to another, does hot constitute a tort unless a legal, as distinguished from a moral right is violated or duty disregarded. One who presumes acting under a moral obligation or charitable impulse may thereby assume a legal duty that will afford a basis for tort liability.

All duties are not necessarily the same as to all persons whatsoever but may vary with the relations of the parties, and may afford a basis for tort whether they arise from the general positive law or from such a particular relation. Similarly, the right may be one That is available only against one or more particular persons, which is sometimes described as a right in personam, or it may be one available against all persons, or, as it is sometimes called, a right in rem, the latter being, however, the typical right which is made the subject of protection by the law of torts. However, despite the generality of the right with respect to those against whom it is available, it must be recognized in tort, particularly as regards the possessor or person who can assert it.

The right invaded must be one personal to the party injured and may not be such as pertains to the public at large, as distinguished from some or any of the individuals of whom it is composed; and a private individual cannot maintain an action in tort to redress a wrong of a public nature unless he has sustained some injury which is special and peculiar to himself. The right may not be such as merely belongs jointly to a group of persons rather than severally to the particular members of the group, nor such as belongs to another, standing in particular relation to the defendant, with which relation the person injured is not connected at the time of the injury. 

(2) Invasion of right or breach of duty (Wrongful act) 

In order to constitute a tort, not only must a right and duty exist, but there must be conduct constituting a breach of duty or a violation of a right. There must be a wrong done; and, conversely, the absence of legal injury is fatal to the existence of a tort. The wrongfulness of the defendant’s acts is not measured by the extent of the damage threatened,

A breach of duty being essential, there must be some unlawful act or omission at the foundation of every tort. While torts ordinarily arise from the commission of acts wrongful either in themselves or by reason of the manner of their performance, where there is a duty to act, and a right to require action, imposed by law, there may be torts based on the nonfeasance or omission to act. Otherwise stated, the act causing the injury may result from nonfeasance, malfeasance, or misfeasance. 

In order to give rise to tort liability, there must not only be an invasion of right, but the invasion must result from the breach or omission of a correlative duty. 

While every wrongful invasion of a protected right causing damage gives rise to a tort, to have that result, there must not only be an invasion of right, but the invasion must be wrongful, that is, must result from the breach or omission of a correlative duty; otherwise it will not be tortious. While it has been held that a tort may be an accident, generally there can be no liability for purely accidental injuries; nor can tort be based on involuntary conduct in the face of an overpowering emergency for which the concerned person is not responsible, 

(3) Legal damage

In addition to the elements of tort heretofore discussed, a third element requisite thereto is damage resulting from the breach of duty and invasion of right. Mere imaginary or speculative grievances, without tangible injury to any legal right, afford no ground for judicial action; but in determining whether matters complained of are of that character, the reaction to such matters of the ordinary reasonable man is a pertinent consideration.

Whether the damage is legal damage or not can be understood with help of two maxims: Injuria sine damnum and Damnum sine injuria. 

(i) Injuria sine damnum 

Meaning: This maxim means that if a private right is infringed, the plaintiff 

have a cause of action even though the plaintiff has not suffered any actual loss and damages

• Injuria = Infringement
• Sine = without
• Damnum = Actual damage 

Illustrative case Law:

A leading case on the maxim of Injuria sine damnum is Ashby vs White (1703). In this case, the plaintiff was a qualified voter and the defendant was returning officer.

The defendant wrongfully refused to register a duly tendered vote of the plaintiff. Thus, the legal right of the plaintiff to cast his vote was infringed. But he did not suffer any actual loss because the candidate for whom he tendered his vote was elected. Yet it was held that an action lay and that the defendant was liable. 

(ii) Damnum sine injuria

Meaning: This maxim means that no action will lie if there is actual loss or damage but there is no infringement of a legal right.

Illustrative case Law:

Gloucester Grammar School Case (1410). In this case, the plaintiff suffered the loss of fees because the defendant set up a rival school next door. It was held that no action would lie because there was no infringement of any legal right of the plaintiff.

(4)  Legal remedy 

A tort is a civil wrong for which the remedy is an action for unliquidated damages. According to Salmond: “An action for tort is, therefore, usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of the legally protected interest.” There may be other remedies also such as specific restitution and injunction, but an action for unliquidated damages is the essential mark and the characteristic remedy for a tort. Therefore, usually, if not always, a wrongful act to be a tort must be such as gives rise to a civil action for damages.

A wrong or breach of any penal provision of law may give rise to both penal consequences as well as civil liability. In some cases, one person may be personally liable for penal consequences, while other persons may be held vicariously liable for civil liability arising out of the same wrong. Even a situation may arise, where a person wronged or injured may not be interested to prosecute the wrongdoer for penal consequences, but may be interested to enforce civil liability. In such a situation, a person can neither be denied injunctive relief against apprehended wrong or repetition of wrong nor can be non‑suited and denied compensation and/or damages that might have been sustained as an aftermath or as a consequence of a wrong, which may otherwise also entail penal consequences. 2003 CLD 293 Karachi

Leading Case laws in Tort Law

In the field of tort law, there are several cases that have had a significant impact on the development of the law and how it is applied in practice. Some of the leading cases in tort law include:

Donoghue v. Stevenson: This case, also known as the "Snail in the bottle" case, established the concept of duty of care in negligence cases. The case involved a woman who became ill after drinking ginger beer that contained a snail, and the court held that the manufacturer of the ginger beer had a duty to ensure that the product was safe for consumption.

Winterbottom v. Wright: This case established that there is no general duty of care in tort law and that a duty of care must be specifically established in each case.

Blyth v. Birmingham Waterworks Co.: This case established the principle of "absolute liability," which holds that a person or entity can be held strictly liable for damages caused by their actions, regardless of whether they were negligent or not.

Rylands v. Fletcher: This case established the principle of "strict liability," which holds that a person or entity can be held liable for damages caused by dangerous activities or conditions on their property, regardless of whether they were negligent or not.

Smith v. Leech Brain & Co.: This case established the principle of "vicarious liability," which holds that an employer can be held liable for the actions of their employees in certain circumstances.

Caparo Industries plc v. Dickman: This case established the "three-part test" for establishing a duty of care in negligence cases, which requires that there be a relationship of proximity or foreseeability between the parties, that it be fair, just, and reasonable to impose a duty of care, and that there be no policy reasons for denying a duty of care.

Parties in Tort law

Tortfeasor:

A tortfeasor is a person who has committed a tort or civil wrong. A tortfeasor can be sued for damages by the person who was harmed by their actions.

In a tort case, the tortfeasor is typically the defendant, and the person who was harmed is the plaintiff. The plaintiff brings the lawsuit against the tortfeasor, alleging that they were harmed by the tortfeasor's actions and seeking compensation for their damages. If the court finds that the tortfeasor is liable for the harm that was caused, they may be required to pay damages to the plaintiff.

Victim

The opposite of a tortfeasor is a victim. A victim is a person who has been harmed by the actions of another person. In a tort case, the victim is typically the plaintiff, and the person who caused the harm is the defendant (also known as the tortfeasor). The victim brings a lawsuit against the tortfeasor, alleging that they were harmed by the tortfeasor's actions and seeking compensation for their damages. If the court finds that the tortfeasor is liable for the harm that was caused, they may be required to pay damages to the victim.

Why Tort Law has not been Codified Learn more

Conclusion 

A “tort” is a legal concept possessing the basic elements of a wrong with resultant injury and consequential damage which is cognizable in a Court of Law. The formulation of any adequate definition of a tort, or torts, has been recognized as being difficult, even impossible. The expression has been considered as so far expressing some common and general legal notion as to have led many courts and legal writers to attempt, if not a definition of the term, at least a description of a number of the characteristics of torts. Frequently such statements are purely negative in form, framed primarily to exclude and distinguish other legal concepts, for instance, where a tort 1s described as a wrong independent of contract, but other descriptions set forth much more amply the nature and characteristics of a tort, although often in conjunction with Similar negative expressions, have been devised, as a guide to the meaning of the term, in the decisions and by the authors of legal treatises and articles.