The Elements of a Tort

Hello friends, this is one more article for your study about "Law of Tort". This blog is only foe study purpose. In this blog I am sharing notes for the "The essentials of a tort". The question on this subject may come for atleast 5 marks as Write short notes of for 8 to 10 marks to explain it in detail. Here you have to remember atleast highlighted part so that you can write minimum required points in your exams.


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A “tort” is a legal wrong, and persons who suffer injury caused by someone else may be able to pursue compensation from the person or persons responsible through a civil lawsuit. In order to prove a personal injury case in court, the plaintiff’s attorneys will typically need to prove that the following essential elements of a tort are present.

Lets see what are essential elements to constitute tort.

1) A Duty Of Care

Demonstrating that the defendant had a duty to observe or protect the safety of the plaintiff.

A duty of care must always be present in any tort law claim if it’s to be successful. This is basically stating that there is a duty of care on part of the person or the manufacturer of some product that must be upheld.

When there is a legal duty to do some act and person fails to perform that duty, he can be make liable for such omission.

The wrongful act or wrongful omission must be recognized by law. Therefore a mere social or moral wrong is not enforceable, e.g. if somebody fails to help a starving man or save a drowning child is only a moral wrong hence not liable.

For example, drivers of cars have a duty of care to drive safely and not intoxicated or under the influence of drugs. Going with the example above, let’s say you have Gopal who can legally drive in the India and has his own car. Well, Gopal has a certain duty of care that he must adhere to at all times as a responsible driver and not engage in behaviors that could endanger others. Examples of this duty of care he has are not getting behind the wheel drunk or affected by drugs. This is a duty of care Gopal has that is enforceable by law so he must adhere to it at all times.

2) Breaching Duty Of Care

The defendant breached that duty and endangered the health and safety of the plaintiff. It can also be stated as “Wrongful act committed by defendant”.

In order to make person liable for tort, he must have done an act which he was not expected to do, or he must have omitted to do something which he was supposed to do. Wrongful act is an act which is contrary to the provisions of law, thereby causing injury to the legal rights of another.

Examples in general: A commits the act of trespass is liable for trespass, or publishes a statement defaming another person is liable for defamation or wrongfully detains another person is liable for false imprisonment.

For Example We’ve established in the previous section that Gopal has a certain duty of care and legal responsibility he must adhere to. If he were to breach this care, whether it’s intentional or unintentional, he could be liable for a tort. For example, if he was to drive his car drunk and then run a red light, which resulted in an accident then he would be found guilty of breaching his duty of care. Therefore, he’d be liable for a tort.

3) Causation Which Results In Suffering

The plaintiff suffered injury in some form.

This part is crucial for a tort case because there needs to be the action that has caused suffering to the victim. In the absence of the cause, there is no case for a tort.

A key aspect of causation that a court will explore is whether or not the victim’s injuries would have occurred had the offender not committed the specific action that resulted in the injury to the victim.

Example Let’s return to the case of Gopal being drunk and running a red light. If while running a red light, he crashed into another car, which resulted in the other driver becoming permanently brain damaged from the crash, then this would be sufficient causation for a tort.

4) Damage Or Injury?

The plaintiff’s injuries were caused by the negligence of the defendant.

This is a crucial part of the puzzle because without the damage or injury sustained then there is no basis for a tort lawsuit.

It’s also important that these damages are proven for there to be a legitimate case. To prove mental and emotional damages, you’d need to get expert proof from professionals in this area. To prove physical damages, advice from medical professionals would be required.

A plaintiff has to prove that there has been a legal damage caused to him it is nothing but an injury to the legal right of the plaintiff thus plaintiff has to prove that there was a wrongful act or omission on the part of defendant, causing thereby breach of legal duty or violation of legal right of the plaintiff vested in him and recognized by law. Therefore, there can be no action under the law of tort unless there has been violation of legal right or plaintiff. Hence violation of legal right is actionable. It is immaterial whether plaintiff suffered by any loss in terms of money or not.

This provision expressed by the maxim "injuria sine damno" means injury to the legal right off plaintiff caused by defendant without any loss in term of money to the plaintiff.

Since what is actionable is the violation of legal right, it therefore follows that when there is no violation of legal right, no action can lie in the court of law even though defendants act has caused some loss of harm or damage to plaintiff.

Let’s roll with the case of Gopal above. The other driver he crashed into must have sustained some sort of injury from his negligent actions. If there is an absence of physical, mental, or emotional damage then Gopal cannot be liable for a tort.

5) Legal remedy –

The wrongful act of the defendant must come under category of wrongs for which the remedy is civil action for damages.

The essential remedy for tort is an action. For damages but there are other remedies also, e.g. injunction obtained in addition to damages in certain cases of wrong.

The law of tort is said to be a development of maxim "ubi jus ibi remedium" that there is no writ  without a remedy.

If a man has a right he must of necessity have a means to vindicate and maintain it and a remedy it is injured in exercise or enjoyment of it.

It is in vain to imagine right without remedy.  Thus where there is no legal remedy, there is no legal wrong.

What Happens If A Tort Is Proved

Injured parties may be able to pursue legal action to gain compensation for present and future medical expenses, lost wages, and mental and emotional trauma.

If all the four elements of tort law above are present then a tort has been committed. In this circumstance, there is going to be a court case where either damages or an injunction occurs.

There are various damages that can be awarded in this instance such as full compensation where the victim must be fully compensated monetarily for his/her suffering.

However, there are various subcategories of damages that can be awarded like nominal damages, special damages, aggravated damages, and more. Victims will pursue any of the damages most applicable to their specific situation in order to get the compensation they deserve.

Ultimately, it’s up to the court to decide what damages will be awarded.

Torts can be a complex part of the law to understand because there are many specifics to each individual case that must be examined.

However, the most important thing to point out is that unless the four elements of tort law mentioned in this post are present, then there can be no case for a tort.

Cases

i) Glasgow coronary V. Taylor, 1992: In this case a corporation fails to put proper fencing to keep the Children away from a poisonous tree and a child plucks and eat the fruits orchestra the poisonous tree and  dies, the corporation be liable for such omission.

ii) General cleaning corporation Ltd V. Christmas 1953: In this case employer failed to provide a safety belt for safe system off work liable for consequence of such omission.

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