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Essential Elements of Torts

In the introduction we have seen that in every tort there must be a wrongful act, and legal damage or injury. It is also shown that every injury imports damage. The terms injury and damage, strictly speaking, signify correlative aspects of the same legal wrong, the one having relation to the actor and the other to the patient of the wrong ; and hence damage is the inseverable sequence of injury, but damage cannot be actionable without the co-existence of injury. But though it is accurate language to say that every injury imports damage, it is not so to speak of the fiction of imported damage, in the sense of some fictitious loss which the law assumes, contrary to the fact, to have occurred.


Damage and damages are not equivalent terms. Damages are the compensation, in the form of a sum of money, which the Court awards for every injury; but the damage which every injury imports is that which is supposed to be compensated by this award of damages; and such damage may consist wholly of a money loss, or partly so, or not at all of such. It is impossible to conceive of an injury or legal wrong that shall not import or result in damage in this sense; and then some award of compensation, however nominal, is obviously incumbent unless wrongs are to go wholly unredressed. Hence the term 'damage' is sometimes used where 'injury' would be more correct ; but the two terms, and the notions they signify, though correlative, are perfectly distinct.

In some cases no action will lie unless actual or special damage is proved. Actual damnum is the gist of action in the following cases:

  1. Right to support of land as between adjacent landowners;
  2. Menace;
  3. Seduction;
  4. Slander (except in four cases) ;
  5. Deceit ;
  6. Conspiracy or Confederation ;
  7. Waste ;
  8. Distress damage feasant;
  9. Nuisance consisting of damage to property ; and
  10. Actions to procure persons to break their contracts with other persons.

In all these cases it may be said that the injury consists in the special damage.

Injuria Sine Damnum

This maxim means infringement or violation of a legal private right of a person even if there is no actual loss or damage. What is required to show is the violation of a right in which case the law will presume damage. Thus, in cases of assault, battery, false imprisonment, libel etc., the mere wrongful act is actionable without proof of special damage. The Court is bound to award to the plaintiff at least nominal damages if no actual damage is proved.

Thus, this maxim provides for,

  1. Infringement of a legal right of a person.
  2. No actual loss or damage is required to prove.
  3. Infringement of a private right is actionable per se.

In Bhim Singh V. State of J&K, the petitioner, an M.L.A. of Jammu & Kashmir Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. Fifty thousand by way of consequential relief.

Similarly an action will lie against a banker, having sufficient funds in his hands belonging to the customer, for refusing to honour his cheque, although the customer has not thereby sustained any actual loss or damage.1)

Damnum sine injuria

Damnum sine injuria means an actual and substantial loss without infringement of any legal right. In such a case no action lies. There are many harms of which loss takes no account and mere loss of money's worth does not by itself constitute a legal damage. The essential requirement is the violation of a legal right. There are many forms of harm of which the law takes no account:

  1. Loss inflicted on individual traders by competition in trade,
  2. Where the damage is done by a man acting under necessity to prevent a greater evil,
  3. Damage caused by defamatory statements made on a privileged occasion,
  4. Where the harm is too trivial, too indefinite or too difficult of proof,
  5. Where the harm done may be of such a nature that a criminal prosecution is more appropriate for example, in case of public nuisance or causing of death,
  6. There is no right of action for damages for contempt of court.

Gloucester Grammar School Case, Held. The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their fees. Held, the plaintiff had no remedy for the loss suffered by them. Hanker J. said “Damnum may be absque injuria as if I have a mill and my neighbour builds another mill whereby the profits of my mill is diminished… but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.”

Bradford Corporation V. Pickles, In this case, the defendant was annoyed when Bradford Corporation refused to purchase his land in connection with the scheme of water supply for the inhabitants of the town. In the revenge the defendant sank a shaft over his land intentionally and intercepted the underground water which was flowing to the reservoir of the plaintiffs. Held that the plaintiffs have no cause since the defendant was exercising his lawful right although the motive was to coerce the plaintiff to buy his land.

For further information on these two maxims see “introduction”.

Wrongful act or omission

An essential ingredient in constituting a tort is that a person must have committed a wrongful act or omission that is, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. There must have been breach of duty which has been fixed by law itself. If a person does not observe that duty like a reasonable and prudent person or breaks it intentionally, he is deemed to have committed a wrongful act. In order to make a person liable for a tort he must have done some legal wrong that is, violates the legal right of another person for example, violation of right to property, right of bodily safety, right of good reputation. A wrongful act may be positive act or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of strict duty for example, driving a vehicle at an excessive speed.

The wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability for the same. For example, if somebody fails to help a starving man or save a drowning child. But, where legal duty to perform is involved and the same is not performed it would amount to wrongful act.

In Municipal Corporation of Delhi V. Subhagwanti, where the Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of number of persons, the Corporation would be liable for its omission to take care. Similarly failure to provide safe system would, also amount to omission, held in General Cleaning Corporation Limited V. Christmas.


This is not a necessary ingredient to the maintenance of an action for tort, where damage is occasioned by a wrongful act, that is, an act which the law esteems an injury. Malice, in the common acceptation, means ill-will against a person ; but, in its legal sense, it means a wrongful act done intentionally without just cause or excuse.2) The word wrongful implies the infringement of some right, i.e., some right which the law recognises and exists to protect. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense 3). A wrongful act, done knowingly and with a view to its injurious consequences, may, in the sense of law, be malicious ; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law.4)) Where a man has no right to do the act, the fact that he does it out of spite or ill-will does not affect the cause of action, though It may entitle a Court to award exemplary damages, .e.g., wanton, persistent, and offensive trespass.5)

'Malice' is variously spoken of as 'express malice,' 'actual malice' or 'malice in fact,' and 'malice in law' or 'implied malice.' The first three terms are identical in meaning. 'Malice' is, thus, of two kinds, 'express malice' and 'malice in law'. 'Express malice' is an act done with ill-will towards an individual. It is therefore what is known as malice in ordinary sense. Malice in law means an act done wrongfully, and without reasonable and probable cause, and not as in common parlance an act dictated by angry feeling or vindictive motives 6). Malice in law is implied malice as well as express malice; that is, when from the circumstances of the case, the law will infer malice. But 'express malice' is not necessarily 'malice in law' : for instance, a prosecution set on foot with the most express malice, but with reasonable and probable cause, would give no ground for an action to recover damages for malicious prosecution. Again ' malice in law' depends upon knowledge, 'malice in fact' upon motive.

The decision of the House of Lords in Allen v. Flood.7) has settled that an act not otherwise unlawful cannot generally be made actionable by an averment that it was done with malice or evil motive. A malicious motive per se does not amount to an injuria or legal wrong. The root of the principle is that, in any legal question, malice depends, not upon the evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed.8) No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or malicious.9)

In certain classes of actions it has been usual to say that the wrongful act was done maliciously, e.g., libel and malicious prosecution. But since the decision in Allen v. Flood, these two cases stand by themselves as the only cases in which motive is essential to constitute the legal wrong.

Intention : Motive

When the doer of an act adverts to a consequence of his act and desires it to follow, he is said to intend that consequence.10) The obligation to make reparation for the damage caused by the wrongful act against right or law, arises from the fault, and not from the intention. A thing, which is not a legal injury or wrong, is not made actionable by being done with a bad intent. In Allen v. Flood, Lord Watson said : “Although the rule may be otherwise with regard to crimes, the law of England does not take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent.” An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent11).

It is no defence to an action in tort for the wrong-doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. Bodily injury, though the consequences of a lawful act or a mere mischance, may be a tort and the existence of an evil intention in the mind of the wrong-doer is not essential; so much so, that even a lunatic, much more a drunken person, will be civilly answerable for his torts, although wholly incapable of design.

Thus, we have the maxim 'Every man is presumed to intend and to know the natural and ordinary consequences of his acts;' and this presumption is not rebutted merely by proof that he did not at the time attend to or think of such consequences, or hoped or expected that they would not follow. Hence the defendant will be liable in every case for the natural and necessary consequences of his act, whether he in fact contemplated them or not. He will be liable also for every consequence which, at the time of committing the tort, he did in fact contemplate as a probable result of his act. But if a particular result is not a natural or necessary consequence of the defendant's act, and can only be recognised as a probable consequence in the light of certain special circumstances peculiar to the particular case, then the defendant will not be responsible for that result, unless he was aware of those special circumstances at the time when he committed the tort.

Pollock says that sometimes we may have independent proof of the intention of a man doing an act ; as if he announced it beforehand by threats or boasting of what he would do. But often times the act itself is the chief or sole proof of the intention with which it is done. We say that intention is presumed, meaning that it does not matter whether intention can be proved or not ; nay, more, it would in the majority of cases make no difference if the wrong-doer could disprove it. For although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as, possible ; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as 'natural,' or 'natural and probable', consequences. What is natural and probable in this sense is commonly, but not always, obvious. There are consequences which no man could, with common sense and observation, help foreseeing. There are others which no human prudence would have foreseen.

Marzetti V. Williams Bank
Bromage v Prosser
Mogul Steamship Co. V. M'Gregor
Allen v. Flood
Merset v. Harvey
Stockley v. Hornidge; The Collector of Sea Customs v. Panniar
1898, A. C. 1
Lord Watson
Bradford Corporation v. Pickles
Stevenson V. Newham

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