What is ‘Tort’ and what are its elements?

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The word tort is derived from the Latin term, ‘tortum’, which means to twist. It is equivalent to the English word “wrong” and Romanian law’s term “delict”. The law of tort consists of various torts whereby the wrongdoer violates some right vested in another person. ‘Tort’ is a breach of duty recognized by the law of torts.

A tort occurs when a person’s obligation to others is violated; the person who commits a tort is known as a tortfeasor or offender. When numerous people are implicated, they are referred to as joint tortfeasors. Their misconduct is referred to as a tortious act, and they may be sued jointly or individually.

The main goal of the law of torts is to compensate the victim. Another reason is to compensate for the wrongs which do not come under any codified law. The Law of tort is uncodified. Most of the tortuous wrongs owe their origin to the writ of trespass on the case.

Section 2(m) of the Limitation Act, 1963, addresses tort as being a civil wrong that is not just exclusively a breach of contract or a breach of trust.

A tort is a growing branch of law and has constantly developed. The area covered in its ambit is continuously increasing.

Definitions of tort given by different thinkers

According to John Salmond, “tort is a civil wrong which has unliquidated damages (those damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial obligation.”

“Tortious liability emerges from the breach of a duty primarily fixed by the law, this duty is towards the other people generally and its breach is redressible by an action for unliquidated damages” – Richard Dien Winfield.

According to Fraser, “A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.”

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Essential elements of the tort

From the above definitions, we establish three things. A tort is a civil wrong. A tort is more than a mere breach of trust. Action for tortuous liability is unliquidated damages. From the definition of Winfield, three essentials can be pointed out. These are:-

  1. There must be a wrongful act or omission.
  2. There should be a duty imposed by law.
  3. Wrongful acts or omissions should result in actual or legal damage.

Wrongful Act or Omission

There must be a wrongful act or omission to constitute a tort.  A wrongful act is when a person does something which he is not expected to do. The omission is when a person does not do what he is lawfully expected to do. A person is held liable in either case of wrongful act or omission.

For example, if A commits the act of trespass; he can be held liable for the tort of trespass. Similarly, when there is a legal duty to act but he does not act, he will be made liable.

Glasgow Corp. v. Taylor[1] is a case of omission. In this Corporation, which maintains a public park failed to put proper fencing. Due to this, children plucked the poisonous fruits from the park and dies, the Corporation was held liable for such omission.

The duty imposed by law

It may be noted that wrongful acts or omissions must be recognized by the law. If there is a moral or social wrong, there cannot be a liability for the same. For example, if someone fails to help a drowning child, it is only morally wrong and no liability arises. Liability will arise only when it can be proven that there existed a legal duty.

A duty of care is imposed on every individual and needs a fair degree of care that he may see as damaging to others. As a result, legal responsibility is legally enforceable in Indian courts.

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Wrongful act or omission should result in actual or legal damage

The plaintiff has to prove that there has been legal damage caused to him to constitute a tort. In other words, it has to be proved that there has been a violation of legal rights. Unless there has been a violation of legal rights, there can be no action under the law of torts.

This is expressed by the maxim “Injuria sine damno”. Injuria means infringement of a right conferred by law on the plaintiff, howsoever trivial. Damnum means substantial harm, loss, or damage in respect of money, comfort, health, or like.

This follows that when there is no legal damage, there is no liability. This is the principle of “Damnum sine Injuria”. It means that the damage without the violation of a legal right is not actionable in a court of law.

Injuria sine damno

Injuria sine damno is Latin for “injury without harm.” Such injury is chargeable under tort law. It happens when a person suffers legal harm rather than actual loss, i.e. when another person infringes on his legal rights. In other words, this is an invasion of a person’s inalienable private right without any actual damage.

An example of this can be the landmark case of, Ashby v. White[2]. The plaintiff was a qualified voter at a Parliamentary Election. But, the defendant, a returning officer, wrongfully refused to plaintiff’s vote. There was no loss due to this referral because the candidate for whom he wanted to vote won. However, the defendant was held liable.

Damnum sine Injuria

It means damage that is not coupled with unauthorized interference with the plaintiff’s lawful right. This is generally so when the exercise of legal right by one person causes harm to the other.

Gloucester Grammar School Case[3] explains this point.

The defendant set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce the fee from 40 pence to 12 pence per quarter. It was held plaintiff has no remedy for the right suffered by them. It was so because the defendant did not violate any legal right of the plaintiff.

Difference between tort and crime

There are a few points that differentiate tort from crime making it a civil law.

  1. A tort is a private wrong. Private wrongs are less serious. Whereas, more serious crimes considered being public wrongs are known as crimes. Private wrong is right in rem and public wrong is right in personam.
  2. Plaintiff has to sue himself since, a tort is a private wrong, As, a crime is a public wrong state brings the criminal proceedings.
  3. There is scope compromise in tort but not in the case of crime.
  4. The remedy in tort damages. In crime, the remedy is in terms of punishment.
  5. The Law of torts is uncodified whereas the law of crimes is a codified law.
  6. In tort, the intention is important but not in all cases. Whereas in the case of criminal law intention is the crux of the offense itself.
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Difference between tort and breach of contract

  1. A breach of contract results from the breach of duty undertaken by the parties themselves. Tort results from a breach of duties that are not undertaken by the parties, but are imposed by the law.
  2. In a contract, duty is based on the privity of the contract and parties owe a responsibility to only parties to the contract. In tort, duty is towards the world at large.
  3. Damages are liquidated in case of contracts. While in tort damages are unliquidated and decided upon by the court.
  4. In the case of a tort, the intention is taken into consideration in some cases. Whereas, in the case of a breach of contract, the intention is irrelevant.


From the foregoing, it is clear that a tort is a civil wrong produced when one person violates the legal rights of another. And the idea of the mental element may or may not be applicable in particular torts, since we would need to know the nature of the tort committed by the individual to identify it.

It can be done knowingly, as in the case of the battery, or accidentally, without the aim of doing such an act, as in the case of neglect, by completing certain activities negligently or by mistake. The situation of tort law is not so good because many people are still unaware of their rights due to a lack of awareness among the people.

The fact that tort law is still uncodified and is a direct derivative of English common law makes it less likely to be adaptable in certain cases to the Indian context. Although, it has now been adapted into the Indian context.

[1] Glasgow Corp. v. Taylor, (1922) 1 A.C. 44.

[2] Ashby v. White(1703) 92 ER 126.

[3] (1410) Y.B. Hill 11 Hen.

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