Constituents of tort

Dr. Mayurakhi Sonowal

 In order to make an offence fall under the category of tort the
following points must satisfy:
• There must be some act or omission on the part of the
defendant
• The act or omission should result in legal damage (injuria),
i.e., violation of a legal right vested in the plaintiff.
• Presence of a legal remedy.

WRONGFUL ACT + LEGAL DAMAGE + LEGAL REMEDY = TORT

There must be some act or omission on the part of the
defendant
• In order to make a person liable, there has been some act or
omission on his part.
• The offender must have acted in a way that is illegal or must have
omitted to do something that he should have done.
Glasgow corporation v. Taylor [1922] 1 AC 44
• In this case, a company fails to put proper fencing in order to keep
the children away from a poisonous tree and a child plucks and eats
fruit from the poisonous tree and dies. The company is liable for
such an omission.
 The act or omission should result in legal damage
• The act or omission should result in legal damage (injuria).
• In all cases of torts, the complainant is required to compulsorily
prove that legal damage has occurred to him as a result of the
defendant’s action/omission.
• Legal damage is only possible if the complainant’s legal right has
been infringed.
• If there is no legal damage, then there can be no action under the
law of torts. The same can be understood with the help of two
maxims.

➢Injuria sine damnum

➢Damnum sine injuria
 Injuria sine damnum
• Injuria means an infringement of a right conferred on the
complainant by law.
• Damnum means substantial loss of money, comfort, health.
• Sine means without.
➢Injuria sine damnum means an infringement of the legal right
without causing the plaintiff any harm, loss or damage.
Ashby v. White (1703) KB
White stopped Ashby from exercising his right to vote. Even though the
candidate for whom Ashby was to cast his vote won the election, the Court
ruled that Ashby’s legal rights had been infringed upon as it was a legal injury
without damage.
 Bhim Singh v State of Jammu and Kashmir (AIR 1986 SC 494)
The petitioner, a Jammu & Kashmir M.L.A., was wrongly arrested by the
police while attending the session of the assembly. In addition, he was not
produced within the required period before the Magistrate. As a result, he
was deprived of his constitutional right to attend the session of the Assembly.
The fundamental right to personal freedom guaranteed under Article 21 and
Protection against arrest and detention under Article 22(2) of the
Constitution had been violated. The Supreme Court ruled on the petition,
Bhim Singh had been released, but exemplary damages amounting to Rs.
50,000 were granted by way of consequential relief.
 Damnum sine injuria
• In cases of damnum sine injuria, there is an actual and substantial
loss without infringement of any legal right and hence no action
lies.
• In cases of damnum sine injuria, there is an actual and substantial
loss without infringement of any legal right and hence no action
lies.
Gloucester v Grammar School (1410) Y.B. 11 hen. IV of 47.
Because of some dispute, the defendant, a schoolmaster, established a rival
school for the plaintiffs. The plaintiffs had to reduce their fees because of the
competition. Thus, the compensation for the loss caused was claimed. It was
held that there was no remedy for the loss suffered by the complainants.
 Mogul Steamship Co. v. McGregor Gow and Co. (1893) A.C. 25

McGregor, Gow & Co. (McGregor) (defendant) represented a group of ship

merchants engaged in the Chinese tea trade. Mogul Steamship (Mogul)
(plaintiff) was also a ship merchant engaged in the tea trade. All the McGregor
ships formed an agreement with each other to drastically undercut the price of
tea for the purpose of driving away all other competitors, including Mogul.
Additionally, the McGregor group offered a five percent rebate to all local
shippers and agents who agreed to exclusively deal with them. Mogul brought
suit against McGregor for unfair competition.
Held: The defendant had done nothing unlawful, by combining for the purpose
trade and competition. They acted with the lawful purpose of expending trade
and increase profit to themselves.
 Presence of a legal remedy
• Where there is no legal remedy, there is no legal wrong
• 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.
• Ubi Jus Ibi Remedium i.e. where there is a right there is a remedy.
Sardar Amarjit Singh Kalra v. Promod Gupta & Ors. (2003)3 SCC 272
• The court held that the principle of ubi jus ibi remedium is accepted as a
basic concept of the law. The Supreme Court also held that it is the court’s
responsibility to protect and preserve the right of parties and to support
them, rather than denying them relief.