Elements of Tort Final

Law of Torts and Their Elements
• The word Tort is derived from the Latin term Tortum which means twisted.
• The term is French equivalent of the English word wrong and the Roman law term delict.
It implies a conduct which is twisted or wrong.
Law of Torts is a body of obligations, and remedies that is applied by courts in civil
proceedings to provide relief for persons who have suffered harm from the wrongful acts
of others.
The person who sustains injury or suffers pecuniary damage as the result of tortuous
conduct is known as the plaintiff (injured party), and the person who is responsible for
inflicting the injury and incurs liability for the damage is known as the defendant or tort
feasor.
A tort, as per English common law, is a civil wrong that causes a claimant to suffer loss or
harm resulting in legal liability for the person who commits the tortuous act.
Conditions of Torts
1. An act or omission on the part of the
defendant;
2. Mental Element-intention, negligence or
breach of strict duty
3. Injury or violation of legal right of the plaintiff
4. In certain torts, damage is also essential
condition.
1. An act or omission on the part of the
defendant
• In every case there must be act of the
defendant which he is prohibited from doing
or omission of the defendant which the
defendant is obliged to do.
• For example: act of agent or servant, act of
agent not the act of stranger
• For example : Mr. A throws Mr. B from
rooftops over the head of Mr.C
2. Mental Element
• Generally the liability is based on the intention
or negligence but there are certain
exceptional circumstances where there is no
necessity of intention or negligence (strict
liability or absolute liability)
• Intention: deliberately done with the knowledge and desire of
consequences or natural consequences
• Negligence: neither desired nor substantially certain but are so
probably that a reasonable man would have for seen and
avoided them.
• Example: A person drives a motor car at a high speed on a busy
road. He knows the consequences that an accident may happen.
Nevertheless he does not desire that it would happen. But the
consequences is so probably as any reasonable person would
foresee and avoid it, his act of driving at an excessive speed on a
busy road is a negligent act. Here the consequences was known
but not desired. It could be probably and not certain.
Intention, motive or malice
• Intention denotes the desire-actual or
presumed for the consequences immediately
following an act or omission, whereas motive
refers to the ultimate purpose which motivates
that desire to bring about such consequences.
For example a person steals foods from a hotel
the intention is to steal but the motive may be
to save his starving child.
• Intention may be necessary but motive is not.
Motive and malice
• Motive may be good or bad but the malice is
always bad.
• To types of malice are used in law: (i) Malice in
law and (ii) Malice in fact.
• Malice in law is merely a formal allegation in
certain torts, such as, defamation, and denotes
that tort was committed knowingly without just
case or excuse. In this sense, it is hardly differs
from the intention.
• S. R. Venkataraman vs Union of India, Supreme Court
held that malice in its legal sense may be assumed
from doing of a wrongful act intentionally without just
cause or excuse or want of reasonable cause.
• Sherer vs Sheield held that a person who inflicts an
injury upon another person in contravention of law is
not allowed to say that he did so with innocent mind.
• Malice in fact means an improper motive which,
among other things, includes spite or ill-will.
• Motive is irrelevant, it could not exonerate him
from actionable claim and cannot oblige for
compensation where otherwise it is non-
actionable.
• Bradford corporation vs Pickels
• Mogul Steamship Co. Vs Mc Gregor
• In exceptional cases, good motive may be
considered to decide self help, private defence,
and in procuring breach of contract.
• On the other hand, improper motive may be
relevant in the following cases:
• Malicious prosecution
• Malicious abuse of civil process
• Slander of goods and slander of title
• Other malicious falsehood
• Nuisance
• It generally aggravates damages even in those torts
where it is not an essential ingredient.
Strict duty
• In certain situations law expects greater care than what
is expected of a reasonable man. In such cases it will be
no defence that act was neither intended nor negligent.
The wrongdoer is held liable without intention or
negligence on his part. This situation creates strict duty.
Instances of such duty are rule in Rylands vs Fletcher,
liability for dangerous animals. Many such duties are
being imposed by welfare statutes. MC Mehta Vs Union
of India supreme court has gone to the extent of
imposing absolute labiality in cases of harm resulting
from the hazardous activities.

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Law of Torts and Their Elements

It implies a conduct which is twisted or wrong.

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