Legal Damage | maxims Injuria sine damno, Damnum sine injuria | cases | Legal Remedy

Legal Damage | maxims Injuria sine damno, Damnum sine injuria | cases | Legal Remedy

Legal Damage | maxims Injuria sine damno, Damnum sine injuria | cases | Legal Remedy


Legal Damage

Yet another essential element of a tort is that wrongful act committed by the defendant must result in legal damage to the plaintiff. Legal damage means neither actual nor pecuniary damage. Legal damage takes place when there is a breach of legal duty or when plaintiff's right recognised by law is infringed.

 As aptly remarked by Lord Holt C.J. in Ashby v. White: "Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary. for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon (plaster), yet it is personal injury. So a man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of his property and the other has no right to come here".

 Whether a damage is legal damage or not can be understood with the help of two maxims, Injuria sine damno and Damnum sine injuria.


Injuria sine damno

The maxim injuria sine damno means that if a private right is infringed, the plaintiff will have a cause of action even though the plaintiff has not suffered any actual loss or damage. Thus, according to this maxim, what is necessary is the infringement of a legal right and not the proof of actual loss or damage. Injuria means infringement of a right (of plaintiff) conferred or recognised by law, and damnum means actual damage or loss.

An illustrative case case on the maxim of injuria sine damno 

 Ashby v. White.

 In this case, the plaintiff was a legally qualified voter of the Borough of Aylesbury and the defendant was the returning officer. The defendant wrongfully, maliciously and fraudulently refused to register a duly tendered vote of the plaintiff. Thus the legal right of the plaintiff to cast his vote was infringed. But he did not suffer any actual loss because the candidate for whom he tendered his vote was elected. Yet it was held that an action lay and that the defendant was liable. Lord Holt, C.J., observed: "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal".


In India also the same principle is followed in Jadu Nath Mullick v. Kali Krishna Tagore case.

Jadu Nath Mullick v. Kali Krishna Tagore.

In this case, Lordships of the Privy Council observed: "There may be, where a right is interfered with, injuria sine damno sufficient to found an action but no action can be maintained where there is neither damnum nor injuria". If a person who is entitled to be upon the electoral roll, is wrongfully omitted from such roll and thus deprived of his right to vote, an action will lie. But if the returning officer acts in good faith and honestly without malice or bad motive and refuses to receive the vote of a person legally qualified to vote, at an election, no action will lie.

Thus the maxim injuria sine damno means that infringement of a legal right will give rise to an action irrespective of the fact that no actual loss or damage has taken place.

For example, if a customer has sufficient funds in his account in a bank and the banker refuses to honour his cheque, an action will lie even though the customer may not have sustained actual loss or damage


Damnum sine injuria

This maxim means that no action will lie if there is actual loss or damage but there has been no infringement of legal right.
As noted earlier, tortious liability arises out of a breach of duty primarily fixed by law. Thus breach of a legal duty or infringement of a legal right is the essential condition for arising of liability in tort. Thus, if I have a mill and my neighbour builds another mill, whereby the profit of my mill is diminished, I shall have no cause of action against the neighbour, although I am damaged. 

This illustration was given by Hankford, J., in Glucestar Grammar School Case,
where the plaintiff suffered loss of fees because the defendant set up a rival school next door. It was held that no action would lie because there was no infringement of any legal right of the plaintiff. Thus if there is no infringement of legal rights no action will lie, lawful competition is no ground of action.

"But if a miller hinders the water from running to my mill, or causes any other like nuisance I have such action as the law gives"

Another illustrative case on the point is Chasemor v. Richards.

In this case a landowner and mill-owner had enjoyed the use of a stream for about six years. The stream was supplied by percolating underground water. An adjoining owner dug a well on his own ground for supplying water to the inhabitants of the district. Consequently, the land- owner and mill-owner lost use of the stream. But it was held that no action would lie because there was no infringement of a legal right.


In Mogul Steamship Co. v. McGregor Gow & Co.

The defendant, owners of certain ships established an association with a view to secure an exclusive trade for themselves between China and Europe. They reduced freight by offering rebate to customers who would deal with them. They thus drove the plaintiff out of trade of carrying tea between China and Europe. The House of Lords held that the plaintiff had no cause of action because what the defendants did was for protecting and extending their trade so as to increase their profits.


In Bradford Corporation v. Pickles.

In this case the plaintiff corporation wanted to purchase some land for starting a scheme of water supply for the inhabitants of the town. The defendant wanted the corporation to purchase his land. But the corporation refused to purchase his land. This refusal annoyed Pickles and in order to get himself avenged, he sank a shaft on his land with the intention of diverting underground water from a spring that supplied the plaintiff Corporation's works. Consequently, the water which percolated through his land from corporation's land on a higher level was discoloured and diminished when it passed again to the lower land of the corporation. The House of Lords held that Pickles was not liable because he was exercising his lawful right. Lord Macnaghten observed: "It is the act not motive from the act that must be regarded. If the act, apart from motive gives rise merely to damage without legal injury, the motive, however, reprehensible it may be, will not supply that element" Thus the exercise by a person of a legal right does not become illegal because the motive of action is improper or malicious.

There may be various reasons for the application of the maxim of damnum sine injuria such as "the harm done may be caused by some person who is merely exercising his own rights; as in the case of the loss inflicted on individual traders by competition in trade, where the damage is done by a man acting under necessity to prevent a greater evil, or in the exercise of statutory authority. Or the courts may hold, on balancing the respective interests of the parties, that sound policy requires that the interests of the defendant should prevail over those of the plaintiff .....so also the harm done may be of such a nature that the law considers it inexpedient to confer any right of pecuniary compensation upon the individual injured, but provides some other remedy, such as criminal prosecution.......


Legal Remedy

A tort is a civil wrong for which the remedy is an action for unliquidated damages. "An action of tort, therefore, is usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. There may be other remedies also such as specific restitution and injunction, but an action for unliquidated damages is the essential mark and the characteristic remedy for a tort. Therefore, usually if not always, wrongful act to be a tort must be such as gives rise to a civil (as distinguished from criminal action for damages. Thus a tort is a civil wrong but all civil wrongs are not necessarily torts. A tort is a civil wrong which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation.


It is said that the development of the law of tort owes much to the maxim, ubi jus ibi remedium" which means that there is no wrong without a remedy. As remarked by Holt. C.J.. "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of a right and want a remedy are reciprocal." There are, however, certain moral and political wrongs for which there is no legal remedy. The maxim simply means that legal wrong and legal remedy are co-relative terms and as remarked by Stephen J. in Bradlaugh v. Gosser that it would be proper and correct to reverse the maxim and to state "where there is no legal remedy there is no legal wrong."


Salmond has aptly remarked, "The forms of action are dead, but their ghosts still haunt the precincts of the law. In their life they were powers of evil, and even in death they have not wholly ceased from troubling." In practice, to some extent atleast, in order to succeed, plaintiff is required to bring his case under one of the recognised heads of torts. This is despite the fundamental principle that if law confers a right upon a person, it must also provide a remedy in case of infringement of that duty. It has been recognised in a number of cases that the fact that there is no remedy is simply the evidence, and nothing more than the evidence that no right exists." And as rightly remarked by Lord Denning M.R. in Hill v. Parsons, (C.A.) of Co. Ltd., this principle enables the court "to step over the tripwires of previous cases and to bring the law into accord with the needs of today."


Conclusion 

Legal damages serve as a crucial mechanism within the legal system to provide compensation to individuals who have suffered harm or loss due to the actions of others. The unique conclusion of legal damages is that they attempt to restore the injured party, as much as possible, to the position they would have been in if the harmful action had not occurred. This principle of restorative justice forms the foundation of legal remedies, ensuring that those who have been wronged are appropriately compensated for their losses and that wrongdoers are held accountable for their actions.

Injuria sine damno recognizes that legal injury can occur even without financial loss. It highlights the importance of protecting intangible rights, such as reputation, and allows for remedies like injunctions or nominal damages to address such harm.

Damnum sine injuria prevents unwarranted claims for compensation when there is no actual legal injury, even if there is financial loss.

Legal remedies aim to provide appropriate solutions when someone's rights are violated or when they suffer harm due to the actions of others. Whether it's through monetary compensation for damages, injunctions to prevent further harm, or other equitable remedies, the goal is to achieve justice and restore the injured party as much as possible. Each case is unique, and the remedy sought depends on the specific circumstances and the type of harm or injury sustained.

Post a Comment

3 Comments