Meaning of Tort
A tort is a civil wrong, independent of contract, for which the law provides a remedy—most commonly damages. Liability generally arises when the defendant commits a wrongful act or omission that causes an actionable legal injury to the plaintiff.
Physical Elements of Tort
Act
An active physical movement or positive conduct by the defendant.
Example: A intentionally pushes B, causing B to fall. The push itself is the physical act.
Omission
A failure to act when the law imposes a specific duty to do so. Mere inaction is not tortious unless a legal duty exists.
Example: A shopkeeper notices a wet floor but fails to put up a warning sign. A customer who slips and falls can sue for the omission.
Malfeasance, Misfeasance and Non-Feasance
Malfeasance
Doing an act that is inherently unlawful.
Example: An official seizes property without any statutory authority.
Misfeasance
Performing a lawful act in a careless or improper manner.
Example: A contractor lawfully digs a trench on a public road but leaves it unguarded; a pedestrian falls in.
Non-Feasance
Complete failure to perform a legal duty.
Example: A landlord who is legally obliged to repair a staircase neglects a loose step, causing a visitor to trip and suffer injury.
Mental / Fault Elements
Intention
Deliberately doing an act (or bringing about a consequence). The defendant need not intend the full extent of the harm that results.
Example: A hits B with a stick on purpose. A is liable for battery even if the blow unexpectedly breaks B’s arm.
Negligence
Failure to take reasonable care. It requires (i) a duty of care, (ii) breach of that duty, and (iii) resulting damage.
Example: A driver looks at a phone, becomes distracted, and hits a pedestrian. The carelessness, not any desire to cause harm, creates liability.
Recklessness
Conscious disregard of a high and unjustifiable risk of serious harm—more blameworthy than ordinary carelessness.
Example: Driving at high speed through a crowded market while fully aware of the danger.
Malice
An improper motive or the absence of just cause. Malice is not required for most torts; a bad motive does not turn a lawful act into a tort, nor does a good motive excuse a wrongful one.
Malice in Fact
Actual spite or ill-will (e.g., filing a false police report purely to harm an enemy).
Malice in Law
Doing something unlawful without lawful excuse (e.g., abusing official power to dismiss someone).
Motive
The reason why the defendant acted. Motive is generally irrelevant in tort law.
Example: Publishing a defamatory statement out of jealousy. Liability arises from the statement itself, not from the jealousy.
Fault
The overall degree of blameworthiness (intention, negligence or recklessness). While most torts require some form of fault, a few impose strict liability, holding the defendant responsible even if every reasonable precaution was taken.
Example (strict liability): Storing a dangerous chemical that escapes onto neighbouring land creates liability under the rule in Rylands v Fletcher, regardless of the care exercised.
Core Legal Requirements for Most Torts
- Wrongful act or omission: The defendant did something the law forbids or failed to do something the law requires.
- Violation of a legal right: The conduct infringed a right protected by law (safety, property, reputation, liberty, etc.).
- Legal injury: The plaintiff’s legal right was violated. Actual pecuniary loss is not essential (injuria sine damno). Conversely, pure financial loss without violation of a legal right (damnum sine injuria) is not actionable.
Injuria Sine Damno
Being unlawfully prevented from voting gives a cause of action even if the preferred candidate still wins (Ashby v White).
Damnum Sine Injuria
A rival opens a lawful competing business and takes customers; the loss of profit is not actionable.
Causation
The wrongful conduct must be a sufficiently direct cause of the harm.
Absence of a Valid Defence
No recognised legal justification (self-defence, consent, necessity, act of God, etc.) exists.
Key Principle
Different torts demand different levels of fault. Intentional torts require deliberate intent; negligence requires a failure to exercise reasonable care; strict-liability torts require no fault at all. Always examine the specific requirements of the tort in question.
Quick Distinctions
| Term | Meaning | Simple Example |
|---|---|---|
| Act | Doing something | Pushing a person |
| Omission | Failing to act when a duty exists | Not warning of a wet floor |
| Intention | Deliberate decision to act or cause a result | Deliberately striking another |
| Motive | Reason for acting (usually irrelevant) | Publishing a statement out of revenge |
| Malice | Improper state of mind (rarely essential) | Filing a false case out of spite |
| Negligence | Failure to take reasonable care | Careless driving while using a phone |
| Fault | Legally blameworthy conduct or state of mind | Lack of care or intentional wrongdoing |
Conclusion
Tort law exists to provide a remedy whenever a person’s wrongful act or carelessness violates another’s legal rights and causes real harm—provided no valid legal defence applies. The fundamental elements outlined above form the analytical framework for determining liability in virtually every tort.
