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NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE

AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED

ANALYSIS OF TERM WRONGFULL ACT AS A CONSTITUENT OF TORT CLAIM
INTRODUCTION OF TORT

Law of tort is concerned with the allocation and distribution of losses. This is the branch of law
governing actions for damages for injuries to private legal rights, for example, right to property,
right to personal security, right to personal reputation, etc. The word “tort” means in law, a
wrong or injury which deals with situations where a person's actions cause harm to society in
general which has certain characteristics. Its most important characteristics is that it is redressible
in an action for damages at the instance of the injured person. Here the injured person can get
damages from the wrong doer to the satisfaction of his injury.

A tort, in common law jurisdictions, is a civil wrong for which the remedy is a common law
action for unliquidated damages, and which is not exclusively the breach of a contract or the
breach of a trust or other merely equitable obligation. Tort law deals with situations where a
person's behavior has unfairly caused someone else to suffer loss or harm. A tort is not
necessarily an illegal act but causes harm. The law allows anyone who is harmed to recover their
loss. Tort law is different from criminal law, which deals with situations where a person's actions
cause harm to society in general. A claim in tort may be brought by anyone who has suffered
loss. Criminal cases tend to be brought by the state, although private prosecutions are possible.

A person who suffers a tortuous injury is entitled to receive compensation for "damages", usually
monetary, from the person or people responsible — or liable — for those injuries. Tort law
defines what a legal injury is and, therefore, whether a person may be held liable for an injury
they have caused. Legal injuries are not limited to physical injuries. They may also include
emotional, economic, or reputational injuries as well as violations of privacy, property, or
constitutional rights. Tort cases therefore comprise such varied topics as auto accidents,false

A wrongful act may be a positive ace or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of . Wrongful act or omission must result in a legal damages. 1. Wrongful act or omission The first essential ingredient in constituting a tort is that a person must have committed a wrongful act or omission i. among many others. 3. defamation. without taking reasonable care to avoid injuring others – tort law will allow compensation. the most prominent tort liability is negligence. a duty is. The question. he is deemed to have committed a wrongful act. If a person does not observe that duty like a reasonable and prudent person or breaks it intentionally.. Wrongful act or omission. Essentials or constituents of tort. and environmental pollution (toxic torts). 2.e. therefore. he must have committed a breach of that duty which has been fixed by law itself. In much of the common law world.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED imprisonment. 1. product liability (for defective consumer products). arises what then in law. It may mean that there is some legal limitation or restriction on the conduct of a person that he should behave in such a manner as a reasonable person would have behaved in like circumstances. If the injured party can prove that the person believed to have caused the injury acted negligently – that is. copyright infringement. Wrongful act or omission must be of such nature so as to give rise to a legal remedy.

he brought medicines. B did this i. In this case Mr. That is’it must . cooked food for her and served her also. brought a suit against him for damages. as regard the part complaining. was under an obligation to the idol to offer the food. it must be a duty primarily fixed by law. She became alright . and could not entitle the plaintiff to maintain a suit. But Miss A never acceded to his request with the result B suffered a lot and became disabled. or beats a person in order to take revenge or keeps a lion on his land which escapes and injures a person on the road. battery or breach of strict duty. A case worth mentioning in this area is of DHADPHALE V. under the consequences. as the case may be. B cannot take any legal action against Miss A as the duty is simply a moral duty and has not been fixed by the law itself. which is not imposed by law. a servant of the Hindu temple. but he did not do so. Roger V. therefore. The servant. For example. GURAV (1881) 8 BOM122. The defendant Mr. But it may be noted that.e. The complained of should. be legally wrongful. For example. it was a breach of religious duty. In this case the facts briefly were that Dhadphale. an action cannot be maintained. Gurav. a breach of merely moral or religious duty will not suffice. if a person drives his motor cycle at an excessive speed in violation of law or fails to perform a duty as required by law. Ranjendro Dutt. It was held by the court that the defendant was under no legal obligation to supply food to the temple’s servant. his omission to supply food to the idol might involve loss to the plaintiff. had a right to get the food offered to the idol. and though. He then requested Miss A to look –after him. once Miss A was seriously ill and she was all alone in her house.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED strict duty.. She requested her neighbour B to look-after her. Even if it is a breach of a religious duty. The court held that. he can be made liable for positive wrongful act or omission in negligence.After sometime B fell ill and by chance he was alone in his house.

Here the police officer will not be deemed to have committed a breach of legal duty because of lawful excuse or justification. he will not be deemed to have committed a breach of legal duty. “infringement of private legal right”. Because without injuria (i. while damage means loss or harm occurring in fact. duty must be from the very first must fixed by law. The crucial test of a breach of legal duty or a legally wrongful act or omission. For example. it would not amount to breach of legal duty or a wrongful act. although he might have committed a breach of legal duty. for which damages are claimed by the latter against the former. a police officer in following a thief trespassed the land of Mr. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind.e. whether actionable as an injury or not. infringement of private legal right) a person does not become a tort. is its prejudicial effect on its legal right of another person which is dealt with under the heading legal damage i. But if an act has been done by a person involuntarily or under the influence of pressing danger.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED prejudicially affect him in some right.. So. . a tort consists of some act done by a person who causes injury to another. In this connection we must have a clear notion with regard to the words damage and damages.feasor. 2. Again if an act or omission is done under some lawful excuse. driving of a motor-cycle on the wrong side is a breach of legal duty and is not actionable in tort unless somebody is injured.e. Damages are claimed and awarded by the court to the parties. For example. the second essential of tort. however.Wrongful act or omission must result in “LEGAL DAMAGE” In general. B. therefore. whereas damages mean the compensation claimed by the injured party and awarded by the court. merely that it will however directly do harm in his interest is not enough. The word injury is strictly limited to an actionable wrong..

The damage suffered was mere damnum absque injuria or damage without injury. They are instances of damage suffered from justifiable acts. (ii) Injuria Sine Damno ( injury without damage) . caused without the violation of some right. 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.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED The real significance of a legal damage is illustrated by two maxims. namely. Damnum Sine Injuria and Injuria Sine Damno. In Gloucester Grammar School Master Case . There are moral wrongs for which the law gives no remedy. Los 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. however substantial. Blundell . though they cause great loss or detriment. 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. fully illustrate that no action lies fro mere damage. in which a mill owner drained off underground water running into the plaintiff’s well. (i) Damnum Sine Injuria (Damage Without Injury) There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. it had been held that the plaintiff school master had no right to complain of the opening of a new school. Acton v.

to the immunity of his person. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. White. It is sufficient to show the violation of a right in which case the law will presume damage. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election. If a man has a right. and to his liberty. Thus in cases of assault. Every person has an absolute right to property. But even so the absence of a remedy is evidence but is not conclusive that no right exists. battery. Where there is no legal remedy there is no wrong. In such a case the person whose right has been infringed has a good cause of action. trespass on land.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED This means an infringement of a legal private right without any actual loss or damage. and an infringement of this right is actionable per se. libel. 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. he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it. returning officers in parliamentary election. therefore. . essential as the foundation of an action.. This principle was firmly established by the election case of Ashby v. in which the plaintiff was wrongfully prevented from exercising his vote by the defendants. want of right and want of remedy are reciprocal. etc. false imprisonment. actual perceptible damage is not. the mere wrongful act is actionable without proof of special damage. 3. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Wrongful act or omission must be of such nature so as to give rise to a “LEGAL REMEDY” The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. and indeed it is a vain thing to imagine a right without remedy.

whether of omission or commission. An omission is generally not actionable but it is so exceptionally. the following formula is deducible: Wrongful act + Legal damage + Legal remedy= Torts. A failure to rescue a drowning child is not actionable. Negligence It is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. not intentional harm. Where there is a duty to act an omission may create liability. Act And Omission. but not such acts as are beyond human control and as are entertained only in thoughts.The area of tort law known as negligence involves harm caused by carelessness. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land. A person who voluntarily commences rescue cannot leave it half the way. .To constitute a tort there must be a wrongful act. but it is so where the child is one’s own. Some General Conditions In Torts.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED Therefore if we mathematically try to explain tort.

An example is shown in the facts of Bolton v. Although she was injured. property. financial status. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm. In the case. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss. or intimate relationships. However. this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. he can recover damages to compensate for his harm. breaches that duty. mental well-being. The test is both subjective and objective. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body. Stone.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED Through civil litigation. a Miss Stone was struck on the head by a cricket ball while standing outside her house. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. the . because negligence cases are very fact-specific. also breaches that duty. Stone the English court was sympathetic to cricket players Once it is established that the defendant owed a duty to the plaintiff/claimant. if an injured person proves that another person acted negligently to cause his injury. breaches their duty of reasonable care. which any reasonable person [objective] in the same situation would clearly have realized. a 1951 legal case decided by theHouse of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. Breach of duty is not limited to professionals or persons under written or oral contract. Breach of duty In Bolton v. the matter of whether or not that duty was breached must be settled. all members of society have a duty to exercise reasonable care toward others and their property.

it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense.a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). Wrongful acts of which malice is an essential element are: # Defamation.malice is not essential to the maintenance of an action for tort. A self willed act like an encroachment for business. 3. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances. cannot generally be made actionable by an averment that it was done with evil motive. Even if some were harmed. not otherwise unlawful. An act.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. Malice. Minister of Health. . As Lord Denning said in Roe v. Voluntary and Involuntary Acts. Where a man has a right to do an act. The first is what is called malice in common acceptance and means ill will against a person. As stated in the opinion. there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. the professionals took reasonable care for risk to their patients.A malicious motive per se does not amount to injuria or legal wrong. Therefore. but an encroachment for survival may be involuntary. It is of two kinds. 'Reasonable risk' cannot be judged with the benefit of hindsight. 2. the past should not be viewed through rose coloured spectacles. is voluntary. the second means a wrongful act done intentionally without just cause or excuse.

if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition.The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. except where fraud or malice is the essence of that act or omission. The term ‘misfeasance’ is applicable to improper performance of some lawful act. # Maintenance. such as trespass. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. The defendant will be liable for the natural and necessary consequences of his act. which are actionable per se and do not require proof of negligence or malice. Malfeasance. motive. Any invasion of the civil rights of another person is in itself a legal wrong. carrying with it liability to repair it necessary or natural consequences. 4. Intention. A want of knowledge of the illegality of his act or omission affords no excuse. whether he in fact contemplated them or not. in so far as these are injurious to the person whose right is infringed.The term ‘malfeasance’ applies to the commission of an unlawful act. . A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. negligence and recklessness. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. # Willful and malicious damage to property. and # Slander of title. whether the motive which prompted it be good. bad or indifferent. It is generally applicable to those unlawful acts. 5. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage. misfeasance and nonfeasance.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED # Malicious prosecution.

whether the wrong happens to have a particular name like . According to this.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED 6. General Principles of Liability There are two theories with regard to the basic principle of liability in the law of torts or tort. he can sue me in tort. which in turn is a reflection of the compelling social needs of the time. # Pigeon-hole theory. The first theory was propounded by Professor Winfield. Fault. But liability may also arise without fault. They are: # Wider and narrower theory. if I injure my neighbour.there is a definite number of torts outside which liability in tort does not exist. all that can be said is that it wholly depends upon flexible public policy. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability.all injuries done by one person to another are torts. An important example is the rule in Rylands v. unless there is some justification recognized by law. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Such liability is known as absolute or strict liability.Liability for tort generally depends upon something done by a man which can be regarded as a fault for the reason that it violates another man’s right.

I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. each containing a labeled tort. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences. . battery. The advocates of the first theory argue that decisions such as Donoghue v. my duty is to hurt nobody by word or deed. According to this theory. cabined and confined in a set of pigeon holes in untenable. This theory resembles the saying. Neither in the one case nor in the other is there any general principle of liability. slander or any other nominate tort. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed. For salmond the law must be called The Law of Torts rather that The Law of Tort. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. and I will be liable if I cannot prove lawful justification. The second theory was proposed by Salmond. negligence became a new specific tort only by the 19th century AD.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED assault. For example.If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort. It resembles the Ten Commandments given to Moses in the bible. Fletcher. This leads to the wider principle that all unjustifiable harms are tortious. so the law of torts consists of a body of rules establishing specific injuries. deceit. deceit or slander. Whether I am prosecuted for an alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. The law of tort consists of a neat set of pigeon holes.

On the whole if we are asked to express our preference between the two theories. amount of which is further asserted by court accordingly.Damage without breach of a legal right will not constitute a tort. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization. The claim differs from person to person and from act to act for e. There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Thus it is a matter of interpretation of courts so as to select between the two theories.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED There is. Lala Punnalal v. if a person abuses a person like any person from general public and if a person abuses the President of our country then in both the cases the amount of damages will be different as no doubt both the acts are wrongful acts but both the persons cannot be compare equally. Kasthurichand Ramaji . in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one.Every act which is wrongful (in the eyes of law) calls for an unliquidated damages. CONCLUSION As we say Law of tort is concerned with the allocation and distribution of losses to the injured party so for this purpose commitment of ‘wrongful act or omission’ is the first step in constituting the tort. however. In an Indian decision. On the other hand if there is an infringement of a legal private right without any actual loss or damage in such a case the person whose right has been infringed has a good cause of action. it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed.g. It would seem more realistic for the student to approach the tortious liability from a middle ground. . that new invasion of rights devised by human ingenuity might give rise to new classes of torts. no recognition of either theory.

So steps should be taken to enlighten this area also. Effort should be made that every time the act or omission should be interpreted so properly.NEED TO EXPLAIN ‘LEGAL RIGHT’ AND VIOLATION THEREOF – AUTHORITIES LIKE AUSTIN AND SALMOND ON JURISPRUDENCE MAY BE REFERRED So ‘wrongful act’resulting in legal damage and legal remedy is the fundamental and principle requirement in constituting the the tort without which no question of claim arises . Now in this era of complex society there are numerous wrongful acts which are being committed in our day today life but some acts are of such nature which are committed only because the fear of committing that act is very less due to the less amount of unliquidated damages for the same. . RECOMMENDATIONS AND SUGGESTIONS Wrongful act is a very wide term in tort. So the interpreters should consider this thing in account. effectively and efficiently so that the injured party could be satisfied to the fullest and therefore there is no chance of complaints from both the parties. There is also lack of awareness in India. the acts which should be resolve under law of tort are being prosecuted under CrPc.