Following are the essentials of a tort –
Act or Omission
In order to make a person liable , he must have either done some positive act or made an omission in the performance of his legal duty . For example , entering on the land of another without justification , or publishing a defamatory statement are examples of positive acts resulting in the torts of trespass and defamation . Omission to perform a duty . e.g. , omission to cover a trench may make a person lable if somebody falls into it and gets injured .
Legal Damage
To be successful in an action for tort , the plaintiff has also to prove legal damage . Unless there is violation of a legal right , an action under the law of torts cannot lie . When there is violation of a legal right , it is actionable even without the proof of any damage ( Injuria sine damno ) . But when there is no violation of a legal right . no action lies even though damage may have been caused to the plaintiff ( damnum sine injuria ) .
Injuria Sine Damno
It means violation of a legal right without causing any damage . Since there is violation of a legal right . It can be actionable in a court of law even though no damage has been caused . There are certain wrongs like trespass , which are actionable per se , Le .. actionable without the proof of any damage . In Ashby v . White , the defendant , a returning officer in a Parliamentary election , wrongfully refused to take the vote of the plaintiff . The plaintiff did not suffer any loss by this refusal because the candidate for whom he wanted to vote won in spite of that . The defendant was , however , held liable , because the plaintiff’s legal right had been violated .
Damnum Sine Injuria
It means causing of damage without the infringement of a legal right . Unless there is infringement of a legal right mere causing of damage is not actionable .
Therefore , no action lies when there is damnum sine injuria . Thus , setting up a rival school by the defendant was not actionable even though plaintiffs suffered loss because of competition ( Gloucester Grammar School case ) . Similarly , when a number of steamship companies combined to oust the plaintiff from business , the defendants were held not liable . ( Mogul Steamship Co. v . McGregor Grow & Co. ) .
In Mayor of Brandford v . Pickles , the House of Lords held that when there is no infringement of a legal right , an action does not lie even though the damage has been caused maliciously .
maliciously , he was held not liable because he had a right to do what he had done on his land in this case . In Town Area Committee v . Prabhu Dayal , the Allahabad High Court has held that the demolition of the buildings illegally constructed by the plaintiff did not result in any ” injuria ” and , therefore , the defendants , i.e . , the municipal authorities could not be made liable for the same .
Mental element in tortious liability
Generally , under criminal law , guilty mind ( mens rea ) is a necessary element for liability . No such generalisation is possible for liability under law of torts . In torts like assault , battery , false Imprisonment , deceit , malicious prosecution and conspiracy , the state of mind of a person is relevant to ascertain his liability .
For ascertaining the liability of a person for the tort of negligence , we compare the conduct of the defendant with that of a reasonable man and make him liable only if he fails to perform the duty of due care . Mental element is relevant in another way also , ie .. when the defendant is innocent and the damage has been caused due to an inevitable accident . In such a case , he is not liable .
In certain areas , on the other hand , mental element is quite Irrelevant . In an action for conversion or defamation , the innocence of the defendant is no defence . Similarly , the liability under the rule in Rylands V. Fletcher is strict.
Malice In Law and Malice in Fact
Malice in Law . –
Malice in law simply means a wilful act done without just cause or excuse . It does not connote any improper motive for doing the act .
Malice in Tort or Evil motive
It means the motive for doing a wrongful act . When the defendant does an act with a feeling of spite , vengeance or ill – will , the act is said to be done maliciously .
As a general rule , motive is quite irrelevant in determining a person’s liability under the law of torts . A wrongful act does not become lawful merely because the motive is good . Similarly , a lawful act does not become wrongful because of a bad motive or malice . In South Wales Miners ‘ Federation v . Glamorgan Coal Co .. the plaintiffs , the owners of coalmines , brought an action against the defendants , a miners ‘ union for inducing its workmen to make a breach of contract of their employment by ordering them to take certain holidays .
The fact that the defendants were not actuated by any malice because their object was to keep up the price of coal by which the wages were regulated , was considered to be irrelevant .
The defendants were held liable . In Mayor of Bradford Corporation v . Pickles , the defendant made certain excavations on his own land out of ill – will for the plaintiffs , who had refused to purchase defendant’s land at an exorbitant price . By these excavations the water flowing underground from the land of the defendant to the adjoining land of the plaintiff corporation was discoloured and diminished . Here , the damage had been caused maliciously but since the defendant was making a lawful use of his own land , he was held not liable .
In Town Area Committee v . Prabhu Dayal , the defendants demolished the construction illegally made by the plaintiff . The plaintiff in his suit claimed that the demolition was illegal as it was mala fide . The Allahabad High Court held that if the demolition is otherwise valid , it cannot become invalid , merely because of malice on the part of some of the officers of the Committee . The court did not go into the question of malice at all and held that the demolition was valid and the defendants were not liable .
