What Constitutes a Tort?

May 22, 2019

This article has been written by Diva Rai, a student of Symbiosis Law School, Noida. In this article she discusses the constituents of torts, the tortious liability equation, and related case laws.

Tortious Liability Equation

Tort is an infringement of an individual’s private or civil rights and a suit must be filed by the injured party.

Tortious Liability = Duty of Care + Breach of Duty + Damage (Causation & Remoteness)

Constituents of Torts

The vested legal right creates a legal duty. Legal rights are the rights that are conferred by law on a particular party or person. To constitute a tort, the following two conditions must be met:

1- The defendant must have done some act or omission.

2- The act or omission should have resulted in legal harm (injuria), i.e. infringement of the claimant’s legal right.

3- The wrongdoing or commission must be of such a nature that a legal remedy can be found.

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First Constituent of Tort

There must be an omission or some act on the part of the defendant.

Illustration: Committing a trespass or publishing a statement, defaming another person or mistakenly detaining another person, may be liable, as the case may be, for trespass, defamation or false imprisonment.

Glasgow corporation v. Taylor [1]-

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.

Test to ascertain that the committed act is Wrongful

The legal rights of others should not be adversely affected. All infringement of private rights are therefore enforceable per se, which means that no evidence is required. However, violations of public rights are not unless substantial damage is done to the complainant in addition to the injury to the public.

In Municipal Corporation of Delhi v. Subhagwanti [2], the respondents filed three suits for damages as heirs of three people who died as a result of the Delhi Municipal Committee’s collapse of the Clock Tower. The trial court held that it was the Municipal Committee’s duty to take proper care of buildings so that the people using the highway as a matter of right could not prove a source of danger.

It was stated, ”It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant’s part.”

Second Constituent of Tort

The act or omission should result in legal damage (injuria). “Damage” means the harm or loss suffered or presumed by someone else as a result of wrongful act/omission. 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. Under tort, no action/damage is possible if no legal right is infringed. The maxim “damnum sine injuria” expresses this proposition. From the perspective of damage presumption, rights are divided into two categories:

If an absolute right is infringed, the law definitively presumes damage even if the wrongdoer has not suffered any loss of money. Violation of absolute law is enforceable in itself, that is, without any evidence of damage. The presumed damage is called legal damage. Illustration: right to land infringement is actionable even if no damage was caused by the infringement.

There is no presumption of damage in the case of qualified rights, and the violation of such rights can only be applied on the basis of the proof of damage.

Illustration: If a landlord makes improvements to the property leased without the right to do so, the landlord is liable for damages, even if the property can be improved and made more valuable by the changes.

Injuria Sine Damnum

Thus, injuria sine damnum means an infringement of the law without causing the plaintiff any harm, loss or damage.

In Ashby v. White [3], the complainant was a qualified voter. The defendant, a returning officer wrongly declined to take the vote of the complainant. The Plaintiff had suffered no damage as the candidate he wanted to vote for, won the election. The Court of King’s Bench by majority rejected the claim.

Holt C. J. dissented: “Surely every injury imports a damage, though it does not cost the other party one farthing, and it is impossible, to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights.”  

On Appeal to the House of Lords, the majority upheld Holt C. J.‟s dissent. The defendant was held liable.

In Bhim Singh v. State of J. & K [4], 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 of the Constitution had been violated. By the time 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.

In Marzetti v. Williams [5], the plaintiff (Marzetti) held an account in the defendant’s bank in this case. Although the plaintiff’s account contained enough money, but when the plaintiff tried to withdraw some money through self-check, he was not allowed to do the same without sufficient reasoning from the bank officials for their act.

The complainant lodged a lawsuit against the banker who refused to honor his check. The defendant was held liable by the court for not being able to withdraw his money. Court held that it does not matter if any actual loss or damage was sustained by the customer.

Damnum Sine Injuria

Thus, damnum sine injuria means damage not accompanied by unauthorized interference with the lawful right of the plaintiff.

Gloucester Grammar School Case [6]- 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. [7]- A number of steamship companies combined and expelled the plaintiff from the tea-carrying trade by offering lower freight. The House of Lords held that the complainant had no cause for action since the defendants had acted legally to protect and extend their trade and increase their profits.

Acton v. Blundell [8]- In this case, in the usual manner, the defendant (a landowner) carried out the mining operations on his field. He finally drained water from another owner’s (plaintiff’s) land through which the water flowed into his well in a subterranean course. It was ruled that the defendant was not required to pay any damages to the plaintiff because the defendant was not involved in any infringement of the plaintiff’s right and that the defendant was fully entitled to use the water for the purposes of his mining.

Mayor & Co. of Bradford v. Pickles [9]- Bradford Corporation provided water from its well. The adjacent land belonged to the defendant (Pickles) to the land from which the Bradford Corporation supplied the water and dug a well. Bradford Corporation argued that the defendant dug well into his own land, thereby cutting the corporation’s underground water supply well. This had caused a corporate monetary loss because the people who lived under the Corporation’s jurisdiction did not have adequate water supply to discharge. Bradford Corporation sued Pickles for damages.

It was ruled that the defendant is not liable because the defendant’s act was not unlawful because it had not infringed the law.

Third Constituent of Tort

The wrongdoing or omissions are of such a nature that a legal remedy can be found. Legal remedy is the third necessary remedy for a tort action. In tort, the wrongdoing must fall within the category of wrongs for which the remedy is a civil damages action. Civil injury is a tort, but not all civil injuries are torts. The essential remedy for torture is an action for damages, but other remedies may also be obtained, for example, in addition to damages in certain cases of wrongs or the complainant’s own action without going to court, i.e. self-help.

Ubi Jus Ibi Remedium

The tort law has evolved from the maxim “ubi jus ibi remedium,” i.e. for every wrong, the law provides a remedy.

In the case, Ashby v. White, Holt, C.J., laid down that “if the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise of enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal”.


Tort law is fashioned as “an instrument for adhering to a conduct of reasonable conduct and respecting one another’s rights and interests.” This is done by protecting interests and providing situations where a person whose protected interest is violated can recover compensation from the person who has violated the same for the loss suffered by him.

Accordingly, it was implied that there are three constituents of torts:


  1. [1922] 1 AC 44
  2. AIR 1966 SC 1750
  3. (1703) 2 Ld. Raym. 938
  4. AIR 1986 SC 494
  5. (1830) 1 B & Ad 415
  6. (1410) Y.B. Hill 11 Hen, 4 of 47, P.21, 36
  7. (1893) A.C. 25
  8. (1843)12 M & W 324
  9. (1895) AC 587
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