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Essential elements of a tort

In order to constitute an act or omission a tort, there must be some act or omission on the part of one party and such an act should constitute one of the torts; and the act or omission should result in causing some damage or injury or violation of legal rights vested in the other party.

Act or Omission

In order to constitute a tort, there must be an act or omission. It may be either negative or positive. In either case, it is the act which is considered as unlawful. When a person has a legal duty to perform and if he fails to perform, then he can be made liable.

Resultant Damage

Mere act or omission or failure to perform an obligation or a duty will not constitute a tort, unless otherwise it results in some injury or damage to the person suing for violation of his legal right. This can be explained with the help of two maxims injuria sine damno and damnum sine injuria.

Injuria sine damno

If a legal right has been violated, remedy must be provided. This principle lays down that, if an absolute right of an individual has been violated, an action lies even if no injury or damage results. It is actionable per se. i.e., no need to prove any damage. E.g. Trespass.

On the other side, if a qualified right has been violated no action lies unless actual damage or injury has resulted. Hence, in case of nuisance or malicious prosecution, actual damage or injury must be proved.

In Ashby v. White, the plaintiff was a qualified voter at a parliamentary election. However, the returning officer, the defendant in the present case wrongfully refused to take plaintiff’s vote. Though no loss was suffered by such a refusal, as the candidate to whom the plaintiff actually wanted to vote won the election, court held the defendant liable for committing a tort.

Damnum sine injuria

If there is no violation of legal right, even though the act of one party causes harm or injury to the other, no action can be taken. In other words, howsoever gross the damage or injury may be, if there is no violation of legal right, damages or relief cannot be claimed.

In Gloucester Grammar School case, the defendant, a school master set up a rival school to that of the plaintiff of the present case in the same locality. As a result, the plaintiff had to reduce their fees so as to compete with the defendant. It was held by the court that, the defendant had not committed any tort. Hence, the plaintiff is not entitled for any remedy.



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