TORT AND ITS ESSENTIAL ELEMENTS OF TORT

Introduction
In simple words, a tort is a civil wrong. When an act committed by one person harms another
person or injures his/her legal rights, it can be classified as a tort. On the flip side, omission to
perform any act can also constitute a tort if it results in harm or injury to another person. The
person committing the tort is known as the tortfeasor. In suits relating to torts, it is very
essential for the injured party to show that the harm or injury caused to him/her has a direct
bearing to the cause of action. Unlike most areas of law, the law of torts is not codified, i.e., it
is not derived from a statute. It is for this reason that tort law is often referred to as judge made
law.
The roots of the word tort lie in the Latin term tortum, which literally means “to twist” and
implies twisted, or wrong, conduct. Salmond, an eminent jurist, defines the term as “a civil
wrong, independent of contract, for which the remedy is an action for damages.” In a crux, the
law of torts is an extension of the Latin maxim, ubi jus ibi remedium, which means that
wherever there is a wrong, there is also a remedy. There are four essential elements of a tort:
 The existence of a duty of reasonable care to be observed towards others.
 The wrongful commission or omission of an act.
 Causation of actual damage or infringement of legal rights due to such wrongful commission
or omission.
 The remedy.
Essential Elements of Tort:
As has already been enlisted, there are four essential elements that are required to constitute a
tort. Let us consider each one in detail.
Existence of a duty of care:
The law imposes a duty on every individual to observe and maintain a reasonable standard of
care when performing any act which may potentially cause harm to another person. In order to
bring a suit for a tort, it must be proved that there existed a duty of care towards the injured
party, which was subsequently breached by the tortfeasor. It is not necessary that the injured
party and the tortfeasor have a direct connection for the duty of care to exist, rather, the duty is
imposed by operation of law.
In the landmark decision delivered in Donoghue v. Stevenson, or the Snail in a Bottle case, the
neighbour principle was developed. Lord Atkin opined that “you must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour.” Naturally, this gave rise to the dilemma about who can or cannot be considered as
a neighbour. The answer to this, according to Lord Atkin, was “persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called in
question.” Thus, the neighbour principle can be applied effectively to determine whether there
exists a duty of care in a particular case or not.
Wrongful Commission or Omission of an Act:
For any commission or omission to be recognised as a wrongful act, it must be so regarded by
the law. An act that is in violation of a law can be suitably classified as a wrongful act. A
moral wrong need not always be a legal wrong, and hence it is not enough for an act to be
immoral to label it as a wrongful act. It is only when the act is legally wrong that it is
classified as a wrongful act, regardless of whether it is moral or immoral. A wrongful act must
also cause actual harm or result in a legal injury to another person. This prerequisite is dealt
with in the next section.
Actual Damage or Legal Injury:
For a wrongful act to constitute a claim for tort and give rise to any liability, the claimant must
have suffered any actual harm/loss, or even an infringement of their legal rights (with or
without any resultant damage), as a consequence of the wrongful act of the tortfeasor. The two
maxims, injuria sine damno and damnum sine injuria, encapsulate the types of damage and/or
injury that fall under the scope of this constituent element of a tort.
The first maxim, injuria sine damno, is literally translated as injury without damage. This
means that while a person has suffered a legal injury, there is no damage resulting from this
injury. An injury of this sort is considered as a tort and the injured party can approach the
courts for a remedy. The most interesting example of this maxim is the case of Ashby v. White,
wherein 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.
The second maxim, damnum sine injuria, means damage without legal injury. Here, while
actual damage or loss is suffered by the party, there is no infringement of legal rights. Thus, in
the absence of a legal injury, the injured party has no claim whatsoever. In the Gloucester
Grammar School case, the defendant set up a school next to the plaintiff school. Students from
the latter flocked to the new school, thus causing severe monetary losses to the plaintiff. The
Court held that no suit could lie here irrespective of the monetary damage as there was no
legal right which was violated by the defendant in setting up a school.
Remedy:
As stated earlier, wherever there is a wrong, there is a remedy. Granting rights without the
provision of remedy in the case of a breach of those rights would be quite pointless. Similarly,
the law of torts also prescribes certain forms of legal remedies for injured parties, such as
damages, specific restitution of property and injunctions that are awarded by the Courts.
Before awarding any relief to the claimant, the Court examines certain aspects of the liability
by performing tests such as the test of directness, test of foreseeability and others in order to
judge the remoteness of damage suffered.
Thus, The four elements (duty, wrongful act, injury, remedy) together form a chain and if even
one of the links in the chain is found to be missing, it would not constitute a tort.