Author Name:   Albab Alam

Elements of Tort, wrongful act, legal damage, legeal remedy,Damnum sine injuria and Injuria sine damno, pigeon hole theory,etc.

Constituents of Tort

The law of torts is fashioned as “an instrument to make people adhere to a conduct of reasonable behaviour and respect the rights and interests of one another.” This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same.

Consequently, it has been implied that there are three constituents of tort:
1) Wrongful Act: There must be a wrongful act committed by a person, that is, the defendant.
2) Legal Damage: The wrongful act must give rise to legal damage to a person, that is, the plaintiff.
3) Legal Remedy: The wrongful act must be of such a nature so as to give a rise to legal remedy in the form of an action for damages.

1) Wrongful Act:-
An act becomes wrongful when the person sought to be made liable was under some legal duty, which he did not perform and the default of which caused loss to the victim.

In Rogers v. Rajendro Dutt (1860) 8 MIA 103 (136); it was ruled that, “The act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will; however directly; do him harm in his interest is not enough.”

An act which, prima facie, appears to be innocent may become tortuous, if it invades the legal right of another person. A simple example is that of erecting a structure on one’s own land. It is completely lawful to enjoy one’s own property by erecting whatever one wants to, on his land. But, if there is a law which gives a right to unobstructed transmission of sunlight to a person’s house if he had been enjoying that sunlight for more than 20 years, then any structure on anybody’s land which may block sunlight to his house is violation of his right and he is entitled to file a suit.

To every right there corresponds an obligation or duty. If the right is legal, so is the duty. If the right is contingent, so is the obligation. If the right is moral, so is the duty. Same goes for the imaginary rights. A right in its main aspect consists in doing something, or receiving and accepting something. Consequently, a duty in its main aspect consists in doing something or refraining from doing or performing an act. For example, servitude of passage over a field appears as a right of walking or driving over it by the owner of a dominant tenement. The duty of the servient owner is to refrain from putting obstacles. The duty with which law of torts is concerned is the duty from to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid harm to others.

In the cases of accidents by motor vehicles, where decision making is very difficult, the victims get statutory compensation under the Motor Vehicles act, 1988 which provides for compulsory insurance in order to give compensation to the victims as a measure of social security.

Liability for a tort arises, when the wrongful act complained of amounts either to an infringement of legal right or a breach or violation of a legal duty.

It can be summarised as that a wrongful act means any act, misstatement, or omission in violation of law, especially the civil law. Wrongful acts include illegal acts, acts that are immoral, anti social, or libel to result in civil suit, error, misstatement, or breach of duty by an officer or director of a company that results in lawsuit against the company.

2) Legal Damage
“Damage” means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The difference between the terms “damage” and “damages” is that, the former refers to the loss suffered by someone while the latter refers to the compensation awarded by the court o the victim for the losses suffered by him.

From the point of view of the presumption of damage, rights are classified into two categories: absolute and qualified.

When an absolute right is violated the law conclusively presumes damage even if the person wronged may not have suffered any pecuniary loss. Violation of absolute right is actionable per se, that is, without proof of any damage. The damage so presumed is called legal damage. The significance of legal damage is illustrated by two maxims, namely, injuria sine damno and damnum sine injuria.
In case of qualified rights, there is no presumption of damage and the violation of such rights is actionable only on the proof of damage.

Injuria Sine Damno:
Injuria sine damno refers to the cases of infringement of an absolute private right without any actual loss or damage. Here the actual damage means physical loss in terms of money, comfort, health, etc. This maxim says that the infringement of certain rights is itself considered as damage and there is no need to prove that an actual damage is caused.Every person has an absolute right over his property, to the immunity of his person, and an infringement of these rights is actionable per se. Here, the law presumes damage because certain acts are so likely to result in harm owing to their mischievous tendency that law has strictly prohibited them. Under this maxim, actual or perceptible or appreciable loss or detriment is not indispensable to the foundation of an action.

This principle has also been applied in India.
Ashby v. White (1703) 2 Ld. Raym. 938:
Mr. Matthew Ashby, a cobbler, turned up to cast his vote for the British Parliament in December 1701. Ashby was turned away by William White, a constable, on the grounds that “he was no settled inhabitant of the borough, and had never contributed either to church or poor. In spite of this, his candidate won the election and no harm was caused to him. But Ashby refused to take this lying down and sued for substantial damages. The defendant contended that since Ashby had suffered no loss as his candidate had won the election, he was not liable. The plaintiff’s suit was successful. Lord Holt C.J. upheld Ashby’s, submissions arguing that what was at issue was “a most transcendent thing, and of a high nature”. Finally it was held that the defendant (White) by preventing Plaintiff (Ashby) from voting violated Ashby’s legal right and was entitled to damages.
Lord Holt C.J. observed, “Every injury imports a damage, though it does not cost the party one farthing and it is impossible to prove the contrary; for a damage is not merely pecuniary but injury imports damage, when a person is thereby hindered of his right. As in an action for slanderous words though a man does not lose a penny by the reason of speaking of them, yet he shall have an action. So if a man gives another a cuff on his ear, though it costs him nothing, not so much as a little diachylon (plaster), yet he shall have his action. So a man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of his property and the other has no right to come there.”

Bhim Singh v. State of Jammu and Kashmir AIR 1986 SCC 494:
On August 17, 1985 Bhim Singh was suspended from the opening of the budget session of the Jammu and Kashmir Legislative Assembly that was scheduled for September 11. He subsequently challenged the suspension in the Jammu and Kashmir High Court. After his suspension was stayed by High Court on September 9, Bhim Singh left Jammu for Srinagar to attend the Legislative Assembly session. On route at 3:00 am on September 10, he was intercepted by the police. He was taken away by the police and kept prisoner at an undisclosed location. After attempts to locate him proved futile his wife and advocate, Jayamala, then moved the court to locate Bhim Singh. On September 13, the court ordered the inspector general of the police to inform Jayamala where her husband was being held in custody. Only after this was Bhim Singh brought before a magistrate for the first time on September 14. The court found that Bhim Singh was not produced before the magistrate nor sub judge who issued the police orders of remand and that the police obtained the orders in surreptitious circumstances at the residence of the magistrate and after hours from the sub judge. The Supreme Courtcriticized the conduct of the magistrate and sub judge stating that they had no concern for the subject out of either casual behaviour or worse that they had potentially colluded with the police who had deliberately acted mala fide. The court ruled that there "certainly was a gross violation of Bhim Singh's constitutional rights" and condemned the "authoritarian acts of the police." The judges stated that the police were but minions and that they were in no doubt that the top levels of the government of Jammu and Kashmir were ultimately responsible.
The Supreme Court in a landmark judgement that impacted tort law in India, awarded Bhim Singh a compensation of fifty thousand rupeesfor his illegal detention and false imprisonment by the police.

Marzetti v. Williams (1830) 1 B & Ad 415:
In this case,the plaintiff (Marzetti) was holding an account in the bank of defendant. Though there was sufficient amount of money in the plaintiff’s account, but when plaintiff tried to withdraw some money via self-cheque, he was not allowed to do the same without any sufficient reasoning by the bank officials for their act. Plaintiff filed the suit against the banker who had refused to honour his cheque.Defendant was held liable by the court and plaintiff was compensated for not being able to withdraw his money.

Ashrafilal v. Municipal Corporation of Agra:
In this case, the plaintiff (Ashrafilal)’s name was deleted and dropped from the voter list by the concerned authorities (election officials), as a consequence of which the plaintiff was not able to exercise his right to vote. Plaintiff sued the Municipal Corporation of Agra, holding it responsible for the violation of his fundamental right. Municipal Corporation of Agra was held liable by the court as the plaintiff’s legal right (right to vote i.e. a fundamental right) was violated and compensation was granted to plaintiff.

Damnum Sine Injuria:
Damnum sine injuria involves the cases in which there is no infringement of any right but the plaintiff has suffered actual damage. Here the actual damage means physical loss in terms of money, comfort, health, etc. In these cases, no action lies. Mere loss in money or money’s worth does not, by itself, constitute a tort. The most terrible harm may be inflicted on one man by another without a legal redress being obtainable as the doer did not infringe any legal right of the sufferer. The maxim means, it can be implied, that there are no legal remedies for moral wrongs unless some rights of the victim are being violated.

Acton v. Bundell (1843)12 M & W 324:
In this case, the defendant (a landowner) in carrying on the mining operations on his field in the usual manner ended up draining the water from the land of another owner (plaintiff) through which the water flowed in a subterraneous course to his well. It was ruled that the defendant need not pay any damages to the plaintiff as the defendant was not involved in any infringement of the right of the plaintiff and that the defendant was in his complete right to use the water for his mining purposes.

Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 201,23:
Defendant was school teacher in plaintiff's school. Because of some dispute defendant left plaintiff's school and started his own school. As defendant was very famous amongst students or his teaching, boys from plaintiff’s school left and joined to defendant’s school. Plaintiff sued the defendant for monetary loss caused. It was held that defendant was not liable. Compensation is no ground of action even though monetary loss is caused if no legal right is violated of anybody. The defendant had lawfully setup his school and did not violate any legal right of the plaintiff in doing so. The plaintiff had, no doubt, suffered considerable damages because of the increased competition (resulting out of the plaintiff’s act to set up a new school) but none of his legal right were infringed by the defendant and hence, the defendant cannot be held liable just because the plaintiff suffered monetary losses.

In Quinn v. Leathem (1901) AC 495, 539:70 LJPS 6; it was ruled that competition was no ground for action whatever damage it may cause, provided nobody’s legal rights are infringed. This judgement is the guiding principle for the cases related to losses suffered by the plaintiff due to increased competition because of the defendant’s act(s).

Chasemore v/s Richards (1859) 7 HLC 349:
Plaintiff (a landowner as well as mill owner) was running a mill on his own land and for this purpose he was using the water of the stream for a long time (about six years). The defendant dug an extensive well in his own land with the aim of supplying water to the inhabitants of district. Consequently, thereby, the defendant’s actions cut off the underground water supply of stream because percolation the water resulted in gathering of the water in the well of the defendant. The quantity of water of stream was reduced and the mill was closed for non-availability of water as the mill owner was not able to get the required amount of water (from his own well). Plaintiff sued deft for damage. It was ruled that defendant was not liable because of principle of damnum sine injuria. The defendant’s actions did not result violation of any legal right of the plaintiff, although the plaintiff suffered actual loss in money.

The defendant’s actions were lawful as he was entitled to use his land in whichever way he wanted and he did not infringe any right of the plaintiff.

Mayor & Co. of Bradford v. Pickles (1895) AC 587:
Corporation of Bradford was supplying water from its well. Defendant (Pickles) owned adjoining land to the land from where the Corporation of Bradford was supplying the water and had dug up a well. Defendant conveyed it to the Corporation of Bradford that he was willing to sell his land to them. He approached the Mayor of the Bradford Corporation to discuss the issue. But, the negotiations failed. The Corporation of Bradford argued that the defendant dug well in his own land and, thereby, cut the underground supply of water of the corporation’s well. This had caused monetary loss to corporation because there was no adequate supply of water to discharge to the people who lived under the jurisdiction of the Corporation. Corporation of Bradford sued Pickles for damages for malice. It was ruled that defendant is not liable, because defendant's act was not wrongful as it had not violated any legal right of the plaintiff (Corporation of Bradford). The court observed that the defendant’s act or conduct was unneighbourly but no action lay against him as he had not infringed any right of the plaintiff.

Day v. Brownring (1878) 10 Ch D 294 : 39 LT 553:
The plaintiff’s house was called “Ashford Lodge”, for sixty (60) years. The adjoining house belonged to the defendant and was named “Ashford Villa”, for forty (40) years. The defendant altered the name of his house to that of the plaintiff’s house. The plaintiff alleged that the act of defendant had caused him a great deal of inconvenience and annoyance. The plaintiff further said that the material value of his property had been diminished because of the plaintiff’s act to rename his house and name it like that of the defendant. It was ruled that the defendant was not liable as he had not violated any right of the plaintiff.

Butt v. Imperial Gas Co. (1878) LR 2 Ch App 158:
The plaintiff (Butt) carried on his business in a shop which had a board to indicate the materials in which he dealt. The defendant (Imperial Gas Company), by the virtue of its statutory authority, erected a gasometer outside the plaintiff’s shop. And, the gasometer was erected and put up in such a way that it obstructed the view of the plaintiff’s premises. The plaintiff brought an action to restrain, by injunction, the erection of gasometer. The plaintiff contended that the actions of the Imperial gas Co. had led him to suffer legal damage and he was entitled to the injunction. It was ruled that injunction cannot be granted for the injury complained of by the plaintiff.

Vishnu Dutt Sharma v. Board of High school and Intermediate Examination AIR 1981 All 46:
The plaintiff (Vishnu Dutt Sharma) was a student who was wrongfully detained by the Principal, on the basis of misconstruction of the relevant regulations, on the account of shortage of attendance. The plaintiff filed a suit and argued that he was entitled to damages as he had suffered loss of one year. But, the court ruled that the plaintiff cannot claim compensation as misconstruction of regulations does not amount to a tort.

3) Legal Remedy
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy of a civil action for damages is available.

The essential remedy for tort is an action for damages. But there are other remedies also:
1)Injunction may be obtained in addition to damages, in certain cases of wrongs.
2)Specific restitution of a chattel maybe claimed in an action for the detention of chattel.
3)In cases of dispossession of land, the plaintiff can also claim recovery of his land.
But, primarily, it is the right to damages that brings certain wrongful acts under the ambit of law of torts.

The law of torts is said to be a development of the maxim “ubi jus ibi remedium”, which roughly means that “for every wrong, the law provides a remedy”. But, it does not mean that there is a remedy for each and every wrong. There are many moral and political wrongs which do not have any legal remedy. For example, there is no remedy for the beach of a solemn promise not under seal and which is made without consideration. The maxim intends to convey the fact that legal wrong and legal remedy, are correlative terms. Therefore, it can be said that, the correct principle is that wherever a man has a right, the law should provide a remedy, as observed in Letand v. Cooper (1965) 1QB 232.

Furthermore, it was laid down in Abbot v. Sullivan (1952) 1 KB 189that the absence of a remedy is evidence but is not conclusive that no right exists.

Theories of General Principle of Liability:
Broadly, there are two theories regarding the principle of tortuous liability. One has been proposed by Salmond and the other one by Winfield.

Winfield was of the view that tort law reflected a general principle of liability. Proponents of this theory say that tort law is a growing subject, many new torts have come up and many existing torts have been expanded. Therefore, tort law is referred to as “law of tort”.

Salmond propounded that tort law is a collection of remediable wrongs because of which it ought to be referred to as “law of torts”. This theory is also known as “Pigeon hole theory”.

Although there is no formal recognition of either theory, a large number of jurists have aligned their views with the concept of “law of tort” and supported the theory proposed by Winfield. The reasons are obvious. As observed by Lord Mac Milan in Donhgue v. Stevenson (1932) AC 56, “Torts are infinitely various, not limited or confined. The conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life.”

Many new torts have emerged in the recent past and some are still emerging. For example,
Rookes v. Barnard (1964) AC 1129 HL: Rookes, the plaintiff, worked for BOAC (British Overseas Airways Corporation). He was a member of the trade union, there, at his workplace. Rookes resigned from the trade union. The employees forced British Overseas Airways Corporation (BOAC) to dismiss him from his job. The matter went to court and the court ruled in favour of the plaintiff and said that he was entitled to damages.

Moreover, the court also invented and defined a new tort, namely, tort of intimidation.

Following conditions need to be satisfied in order to claim damages for tort of intimidation.
1) A threat;
2) An intent to injure;
3) Some act taken or forgone by the plaintiff as a result of the threat;
4) As a result of which the plaintiff has suffered damages.

Rylands v. Fletcher (1868) LR 3 HL 330:Fletcher employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris, they chose to continue work rather than properly blocking them up.The result was that, Fletcher's reservoir burst and flooded a neighbouring mine, run by Rylands, causing £937 worth of damage. Rylands filed a suit seeking damages for the losses suffered. The court observed, "the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". Prior to this case, English courts had not based their decisions in similar cases onstrict liability, and had focused on the intention behind the actions rather than the nature of the actions themselves. In contrast, in Rylands v. Fletcher, the court imposed strict liability on those found detrimental in such a fashion without having to prove a duty of care or negligence.

This case opened up a whole new dimension of strict liability which shaped the law of torts, for a long time before losing its significance in the light of emergence of the principle of absolute liability, which was most significantly used by the Supreme Court of India in M.C. Mehta v. Union of India (1986) 2 SCC 176under which it was ruled that there was the exception under the principle of strict liability were no defence for the defendant as the principle of absolute liability, which was applied by the Supreme Court in this case, had no room for such exceptions.

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