General Elements of Liability in torts or,
Essentials of a Tort
Following elements are essential of Liability in torts-
- Wrongful act or ommision on the part of the defendant,
- The act or ommision should result in “legal damage” (injuria), i.e, Violation of legal right vested in the plaintiff.
- Legal Remedy
1.- Wrongful act or omission on the part of the defendant-
‘As per law of torts,In order to make a person liable for tort, he must have done some act which he was not expected to do or he must have ommitted to do something which he was supposed to do. Either a positive wrongful act or an ommission which is illegally made, will make a person liable.’[i]
For example – A commits the act of trespass, he can be made liable for trespass.
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 a omission.
For tortious liability the wrongful act or wrongful omission must be recognised by law. Violation of moral, social and religious duties does not come under the category of torts
For example – If somebody fails to help a starving man or save a drowning child, it is only a moral wrong and the person can not be made liable for the omission.
2. Legal Damages –
– In order to make a person liable for tort, There should be legal damage on the part of plaintiff. The plaintiff has to prove that there has been a legal damage caused to him. Unless there has been a legal damage there can be no action under law of torts.
Thus, If a legal right has been violated, remedy must be provided. This is expressed thus, (injuria sine damno). 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 filed.(damnum sine injuria).
Or damage without the violation of legal right is not actionable in court of Law.
3.Legal remedy –
It is based on maxim “ubi jus ibi remedium”
Where there is right, there is remedy, means that whenever a right is violated, the person whose right has been infringed has a remedy against the person so violating his right.
A tort is a civil wrong for which the remedy is an action for unliquidated damages. Thus, the main remedy for a tort is an action for damages. There are other remedies such as specific restriction and injuction. But an action for unliquidated damages is an essentialcharacteristic of remedy for tort.
It is mainly the right to damages which brings such wrongful acts within the category of torts.
[i] Dr. R.K. Bangia’s ,’ Law of Torts’ Allahabad Law Agency