General Conditions of Liability for a Tort
In general, a tort consists in some act done by the defendant whereby he has without just cause or excuse caused some form of harm to the plaintiff. The fundamental principle of this branch of the law is alterum non leadere- to hurt nobody by word or deed. An action of tort, therefore, is usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. However, the law of tort fails to provide adequately for the injury other than physical, done maliciously or carelessly.
In order to constitute a tort, the following conditions are to be satisfied:
(1) There must be a wrongful act or omission on the part of the defendant
(2) Such act or omission should result in legal damage (injuria) to the plaintiff
(3) Some legal remedy in the form of an action for damages must be available.
(1). Act or Omission
In order to make a person liable for a tort, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is illegally made, will make a person liable. For example, A commits the act of trespasser publishes a statement defaming another person, or wrongfully detains another person, he can be made liable for trespass, defamation or false imprisonment, as the case may be. Similarly, when there is a legal duty to do some act and a person fails to perform that duty, he can be made liable for such omission.
if a corporation, which maintains a public park, fails to put proper fencing to keep the children away from a poisonous tree and a child pluck and eats the fruits of the poisonous tree and dies, the Corporation would be liable for such omission. (Glasgow Corp. v. Taylor, (1922) )
Similarly, if the Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of a number of persons, the Corporation would be liable for its omission to take care in the matter. (Municipal Corporation of Delhi v. Subhagwanti, A.I.R. 1966 S.C. 1750.)
It may be noted that the wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability for the same. For example, if somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child.
(2). Legal Damage
The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission which caused breach of a legal duty or the violation of a legal right vested in the plaintiff. So, there must be violation of a legal right of a person and if it is not, there can be no action under law of torts. If there has been violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the maxim, “Injuria sine damnun ‘Injuria’ refers to infringement of a legal right and the term ‘damnum’ means substantial harm, loss or damage. The term ‘sine’ means without.
However, if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant. This is expressed by the maxim ‘Damnum sine injuria.’
(3). Legal Remedy or Damages
The third and final ingredient for a tort is that there must be a civil action available for damages, which is the main remedy. Other remedies such as injunction are additional only. The maxim ubi jus ibi remedium means that ‘where there is a right there is a remedy’.
In Ashby v White, it was observed 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 or enjoyment of it for every man who is injured ought to have recompense.”