• Lex Specialis


Ritwik Tyagi


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:

  1. The existence of a duty of reasonable care to be observed towards others.

  2. The wrongful commission or omission of an act.

  3. Causation of actual damage or infringement of legal rights due to such wrongful commission or omission.

  4. The remedy.

Types of Torts

Before discussing the essential elements of the law of torts in detail, let us take a glance at the various types of torts. There are three types of torts: first, intentional tort; second, negligent tort; and third, tort of strict liability.

The first kind of tort occurs when a person intentionally commits or omits to commit an act, being fully aware that such commission or omission will cause harm or injury to another person. Examples of intentional tort would include trespass, libel, assault and many more. When, on account of the negligence of one person, another person suffers some harm or injury, the first person is said to have committed a negligent tort. An example of this type of tort would include an accident caused due to disobedience of traffic rules. It is crucial here to note the implications of the word negligence - which is when the reasonable level of care, as expected of a prudent person, has not been observed. In torts of strict liability, a person is deemed to be liable for a wrong regardless of the question whether he/she had the intention to commit such wrong or not. The famous case of Rylands v. Fletcher was instrumental in laying down the law relating to the tort of strict liability.

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.

1. 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.

2. 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.

3. 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.

4. 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 essential elements of the law of torts have been explained in this article. 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.


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