Question:- Discuss the conditions which must be present before liability in Tort may arise.

Answer:- Conditions which must be present before liability in Tort may arise:-

To constitute a tort:

(i) there must be wrongful act committed by a person.

(ii) the wrongful act must result in legal damages to another, and

(iii) the wrongful act must be of such a nature as to given rise a legal remedy in the form of an action for damages.

We discuss these below:

(i) Wrongful act : The act complained of must be legally wrongful as regards the party complaining. The act or omission must be wrongful in law and must have affected the person complaining in some legal right. A moral wrong, social wrong or political wrong is not a Tort. Therefore, it is not enough if it will somehow indirectly do him harm in his interest. Some legal right must be affected.

Now the question arises, what is a legal right? Austin has defined legal rights as a ‘faculty’ which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided into private rights and public rights. Private rights include all rights which belong to a particular person. to the exclusion of the world at large.

Where a public right has been infringed, without any authority of law, no action will lie by a particular individual unless in addition to the  injury to the public, a special, peculiar and substantial damages is occasioned to the plaintiff.

It should be noted that a tort can be committed both by an act or omission. A person should not do an act, which he is prohibited by law to do and he should do, only what he is legally bound to do.

Lastly, an act which prima facie, appears to be innocent may become tortious if it invades the legal rights of another person. For example, erection as one’s own land of anything which obstructs the light of a neighbour’s house. It is, no doubt, lawful to erect what one pleases on one’s own land; but if by twenty years’ enjoyment the neighbour has acquired the legal right to the unobstructed transmission of the light across that land, the erection of any building which substantially obstructs it is an invasion of the right, and so not only does damage, but is unlawful and injurious.

(ii) Legal Damage: The second essential ingredient of liability in tort is damage or harm. But it is not every damage. On the other hand only that which is a damage in the eye of law. There may be a wrong done to a person but, if it has not caused him legal damage, there is no tort in respect of which an action is maintainable. Legal damage is neither identical with actual damage, nor it is necessarily pecuniary. In other words the Sine quo non of legal damage “is a wrongful act” i.e., the infringement of a legal right followed up either by a presumption of legal damage of proof of actual damages. The following are the essential ingredients of legal damages :

(a) There must be an infringement of a legal right (absolute or qualified).

(b) Such infringement of a legal right must have a presumption of damage in the eye of law.

(c) Proof of actual damages suffered in case the right contravened is not an absolute but only a qualified right.

In the leading case of Ashby vs. White, the vote of a man who was legally entitled to vote was wrongfully refused by the returning officer. It was held that the plaintiff was entitled to damages. Lord Holt C.J. observed:

“Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary. A damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of such the speaking, yet he shall have an action against the wrongdoer. So if a man gives a cuff on the ear, though it cost him nothing, yet he shall have his action, for it is personal injury. Likewise a man shall have an action against another for riding over his ground though it caused him no damage; for it is an invasion of his property and the other has no right to come there.”

The real signification of legal damage can be best illustrated by the following two maxims :
(a) Injuria sine damnum.
(b) Damnum sine injuria.

(iii) Legal remedy for damage. The third ingredient of a tort is that the wrongful act complained of must be such that it may give rise to a legal remedy in the form of an action for damages.

A tort is a civil injury, but all civil injuries are torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Though the specific remedy for a tort is an action for damage, but there are other remedies also i.e., injunction may be obtained in addition to damages in certain cases of wrongs. Similarly specific restitution of a chattel may be claimed in an action for a detention of a chattel.

Question:- What are the characteristics of the concept of Tort ?

Answer:- The content of the answer is same.

Leave a Comment