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FUNDAMENTALS OF TORT AND DISCUSSION ON INJURIA SINE DAMNO & DAMNUM SINE INJURIA
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FUNDAMENTALS OF TORT AND DISCUSSION
ON INJURIA SINE DAMNO & DAMNUM SINE INJURIA
INTRODUCTION
The word Tort has originated from the French
word tortum whose literal
meaning is something that is ‘twisted’ or ‘crooked’. It is an
elusive concept and has defied attempts to formulate a useful definition, but a common element in all torts is that
someone has suffered loss or harm as a result of some act or failure
to act by another.
Salmon
defines it as “A civil wrong for which the remedy of law is an action for
unliquidated damages and which is not exclusively the breach of contract or the breach
of trust or other
near equitable obligation”. Winfield defines tort as “Tortuous liability
arises from the breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach
is readressable by an action for unliquidated damages.” Limitation act, 1983, section 2(m)
defines tort as a civil wrong independent of contract.
The
law of Tort remains an uncodified one and is largely unaffected by statutes.
Tort is termed as a civil wrong.
Any person who commits a wrong is termed as Tort Feasor.
It is the body of law
which allows an injured person to obtain compensation from the person committing
the tort (Injury here means infringement of a legal right).
It
is a civil wrong other than a breach of trust or contract which the law will
redress by an action for
unliquidated damages. Exception to this can be intentional Negligence. Consider
a surgeon who intentionally operates someone
wrongly leading to that
person’s death; this will be a crime
and a tort.
The two maxims injuria sine damnum
and damno sine injuria are the essential Latin maxims that help to better
understand the application of tort law. By a close observation of both one can deduct the balance
between the damage or injury suffered and the compensation it amounts to
relating both to the actual infringement
of a legal right. This article caters to delve deeper into these two maxims understanding their application through
case laws and legal interpretations.
ELEMENTS
OF TORT
There are basically three major elements
that constitute a tort.
This
includes the tort feasor or essentially the defendant whose action causes
certain harm or injury. Secondly,
the plaintiff whose is harmed
by the defendant or more correctly
whose legal right
has been infringed. Thirdly the defendant seeks a remedy
for the harm done to him.
Invoking
Ubi jus ebi remedium which is a Latin
maxim that translates to where there is a right there is a remedy. We are primarily
focused on the rights that are infringed
by the tort feasor.
The action
of the tort feasor causing the harm or
injury can be an act that invades
any of the three rights.
§ Defamation
§ Property ( Trespass- nominal
or actual)
§ Body
rights (Assault, battery
etc.)
To constitute a tort it is not necessary that a person
suffers monetary damages,
the necessary condition is the infringement of a legal
right i.e. a legal injury is caused. This injury can be in terms of loss of
money, health, comfort or alike.
TORT
LIABILITY
Now
to what extent can someone be held accountable in tort law is dependent on
various factors that can
be majorly de divided into four heads namely Fault,
types of injury,
types of damage
and excuses by defendant.
Now liability
of a person can be strict which
implies that a person would
be deemed responsible to compensate the injured even when they are not at fault or
there is the concept of absolute liability
which arises in case of hazardous activities like keeping explosives. Tort can
be committed with the intention to
commit it or due to gross negligence, both would have different consequences.
Liability
strictly befalls on the type of injury caused. It can be an injury to the
person in the sense of causing wrongful
death or as an assault,
it can also be causing
mental distress to the person. It can be for causing false
imprisonment as well. It can be for causing harm to the property of the person
in terms of nuisance caused,
trespassing and fraud.
Liability
depends on the type of damage caused to the plaintiff. It is generally pecuniary
as in loss of earnings, nursing
expenses and loss of matrimonial aspect. But a lot of times it can be non – pecuniary
as well such as pain and suffering, loss of life expectation, loss of physiological function.
Now to be relieved
from the liability,
a tort feasor uses a range of excuses,
these include volenti
non fit injuria which translates to that a person who knowingly jumps
into danger cannot then later recover
damages. Other would be Act of God necessarily used when the plaintiff is harmed
due to a natural calamity not at the fault of the defendant. Defendant might
also use private defense stating that
the action was taken as a way to save himself and not to injure the plaintiff.
INJURIA SINE DAMNO
There
are two types of cases in tort, as already discussed the most important element
of tort is the infringement of a legal right whether
it causes damage
or not. So it is divided into two parts
the first one where there is infringement of a legal right but no
damages are caused, and that where
infringement is caused along with the damages. The first category falls under
the maxim injurious sine damno. There
are certain cases in torts which fall under this category where the court believes it is not necessary for the
plaintiff to have suffered damages and that the infringement of the right is enough reason for compensation.
The same principle
has been followed in India.
It was observed by the Privy Council
that “there may be, where a right is interfered
with, injuria sine damno sufficient to find an action: but no action can be maintained where there is
neither Damnum nor injuria”. An example for this is carrying a procession through a certain public street on a
particular occasion or receiving offerings by setting
up a
new temple in the same vicinity
of the same deity.
Refusal to register vote
Facts
- In this leading case Mr. Ashby was prevented from voting at an election by
the returning officer Mr. White on
the apparent pretext that he was not a settled
inhabitant, which is wrongfully refusing to register his tendered vote
at the parliamentary election.
The person Mr. Ashby had voted for won the election anyways
and therefore no loss was suffered by the rejection of his vote. Mr.
Ashby filed a case against him for
infringement of his right to vote
Issue - Whether
an injury could be established in the absence
of financial loss
Held
an important judgment was laid down by the court. It was observed that by rejecting
that persons vote Mr.
White has violated the legal right of the plaintiff. The returning officer has acted maliciously and though there was no financial loss to the plaintiff, the legal injury
inflicted was enough
a cause for the action.
If
a person entitled to be included in the electoral roll is wrongfully emitted
from such role so as to be deprived of his
right to vote he suffers a legal
wrong for which an action
lies.
Banker refusing cheque
Facts
- In this case the plaintiff Marzetti was holding an account in the Bank of the defendant. There was sufficient amount of money in the plaintiffs account but when he tried to withdraw some money through a self-check
he was not allowed to do so by the bank
officials without giving any particular reason for their act. The plaintiff has
filed a suit against the banker who had refused to honour his check
Issue- Whether the suit is maintainable though
the plaintiff suffered
no loss.
Held- It was observed
by the respective code that though
there was number loss caused
to the plaintiff through the defendants actions but the defendant is
still liable for infringing the plaintiff’s
right to withdraw money from his own account.
DAMNUM
SINE INJURIA
This maxim indicates that if there
is no legal loss or no legal right has been infringed, no remedy can be given for the same. A mere
monetary loss does not in itself constitute a tort. There are various situations in which terrible harm
is inflicted by one man on another but they are not wrongful in terms of law and hence give no right of action. The
essential element of tort is the infringement
of a legal right, a right that is recognized by the law. If the person has
suffered damages due to another party
but his legal right is not infringed it is no cause of action in tort law. This maxim can be better understood by the case laws
given below.
FOREIGN
CASE LAWS
Cases relating
to percolation of water
Facts- One of the land owners
was invested in mining. The owner adjacent
to him had a well in which water flowed in its
natural course from the first owners land. One day during the regular course of mining operations on his own land
in the usual manner he drained away
the water from the land of other owner through which water flowed in a subterranean course to his well. The other
immediately filed a case, as he enjoyed the well for a lot of years and due to his neighbours
action he has faced damages.
Issue – Whether
depriving the neighbour of the well he enjoyed
can constitute a tort.
Held-
In the immediate case it was held that the latter had no right to maintain an action. Though the act of the neighbour
has caused him damages in deprived him from
enjoying the benefits
of a well which has existed in his property
for a long time, but the following has not deprived
him of any legal right.
Hence, no action
for Tort will arise.
Facts-
A Lady owned a cottage. A landowner whose land was adjacent to her cottage kept on extracting underground water
despite the warning that it was likely to result in the collapse of the neighbouring land. The lady filed an action
against the landowner for damaging her property.
Issue – Whether
the landowner can be made liable as the collapse
of the house was foreseeable.
Held - Landowner is entitled to exercise his right to obstruct subterranean water flowing in undefined channels under his land
regardless of consequences, whether pecuniary or physical, to his neighbours and regardless of his motive or
intention or whether he anticipated
damage. Holding onto this view it was held that the landowner was not liable to his neighbour, whose actions ended up damaging her house.
Personal View- Though
the decision in the case is provides
no compensation, but there is a need for
a judicial decision or legislation to change the view. As
it gives an unrestricted right to the person for extraction of underground water,
this may result
in bringing down the water
level in the neighbouring area to such an extent to dry up all the wells, seriously affecting the life
and vegetation of the neighbourhood. A new decision as to restricting the point of liability arising
after a certain
point is needed.
Cases Relating to Working
of Mine
Facts -
A landowner while working his mines makes the coal impervious to water so that the
greater part of the rainfall floats away over the surface and due to
gravitation and percolation into the
defendant’s workings. The other party had to bear additional expenses to pump out the water from their
lower coal mine; hence they filed a case for
damages.
Issue – Whether
the defendants could be made liable for the damages
caused to the plaintiff.
Held
- It was held that the owner of the later could not sustain any action because
the right to work a mine was a right
of property, and any person exercising their right had no responsibility to pay for the damages
caused when they had
not infringed any right of the other.
Rival School Set Up
Facts–The
defendant used to be a teacher at the plaintiff school. Due to some internal dispute, he left the job and set up his
own school next to that of the plaintiff. As the teacher was famous among the students, the students left the
plaintiff school and join the defendant
school. The plaintiff sued the defendant for the monetary
loss caused to him due to setting up of the rival school.
Issue –Whether damages
caused due to competition constitute a tort.
Held - The defendant
had legally set up his school and he did not violate
any regal right
of the plaintiff in doing so. Mere competition can be no ground for
action whatever damage may result
from it. The boys moved to the defendant’s school through their free will,
hence not infringing any legal right of the plaintiff, no action could arise.
Driving Rival Out of Market
Facts
–The plaintiff was an independent ship owner who used to send his ships to
the cargo port stopped in cargo. The
defendants were also a group of people who owned the business of cargo ships. They sent a lot of ships to the
port and reduced their flights to the value that the plaintiff
was not able to make profit and also
threatened any agent
who helped in loading the plaintiff ship. The plaintiff filed a suit
against the defendants for the damages caused
to him
Issue - Whether
the defendant’s actions
were unlawful and could be alleged as a conspiracy.
Held - The defendants had acted in a manner to protect their own
profits which is a lawful objective. There was no malicious intention
to injure the rival trader,
it was only intended by
them for the plaintiff to withdraw from the trade, and the actions were taken in furtherance of their own business
interests. No legal right of the plaintiff was
infringed. It was decided that a
damage done by competition in trade
is not actionable
Using Same names for House
Facts
- The plaintiff resided in a big house named Ashford lodge and his neighbour’s house was named Ashford villa. The
plaintiff’s house has been named for 60 years and the defendants for 40 years. The defendant changed the name of
his house to Ashford lodge. The plaintiff filed the
suit against the defendant alleging
that the act has brought
him great annoyance and inconvenience, it also lead to diminish the
value of his property.
Issue - Whether
keeping same names of adjacent properties be called unlawful
Held
- It was observed by the judges that the court can only interfere in matters
where there was an infringement of legal right. In the pertaining case the
defendant by naming
his house same as that of the plaintiff did not infringe any legal right
of the plaintiff, hence any action could not arise.
Obstruction in viewing shop
Facts
- The plaintiff was a shop owner, he had a board outside his shop
indicating the materials that he
deals with. The defendant by virtue of a statutory authority, erected a gasometer outside the plaintiff shop, it
was put up in such a way that it obstructed the view of the plaintiffs premises. The plaintiff in this situation files the case to restrain
the erection of gasometer.
Issue - Whether the plaintiff has suffered
a legal damage and is entitled to injunction
Held - The court observed that though the erection of the gasometer
has obstructed the view
of the plaintiff shop, it has still not infringed any legal rights of the
plaintiff. It was ruled that the injunction cannot be granted
for the injury
complaint thereof.
Wrong delivery of telegram
Facts- A sends the telegram to B for certain shipment. The telegram company
mistakes the address of B
for C and henceforth delivers the telegram to C instead of B. C acting upon the given telegram sends the goods to
A. A then rejects the goods delivered by C stating
that it had ordered the goods from B are not from C. C then files a suit
against the telegram company for the losses
that he beard due to the mistake
of the telegraph company.
Issue - Whether
the defendants can be made liable on the grounds
of negligence covered
under torts
Held - It was observed in the apparent case that the company did
not owe any duty of care to the
plaintiff, it did not infringe
any legal right of the plaintiff hence it
cannot be made responsible for the damages that the
plaintiff suffered due to the misdelivery of
the telegram.
Water Supply Cut off
Facts
- Defendant servant was driving a lorry and due to his mistake a fire hydrant
near the plaintiff’s factory was damaged. As a result
of this the main water supply was cut off and this caused the loss
of one day’s work in the plaintiff’s factory. The plaintiff filed the case
against the defendant for the loss it has suffered due to the shutdown of one day.
Issue - Whether
the plaintiff has suffered any legal injury.
Held
- The court observed that neither the hydrant nor the main were owned by the plaintiff. There was no injuria to the
plaintiff. The loss of the one day’s work was caused due to the circumstances which arose due to the negligence of the plaintiff
but it did not fall
under the category of legal injury.
INDIAN CASES
Loss of academic
year
Facts
- The plaintiff was a student in Anglo Sanskrit College, mawana. He was
detained on the grounds of short
attendance. The college authority has not maintained their attendance register in accordance with the
regulations of the board; it was required to
maintain attendance in every period whereas it was only done twice a day
in the college. Due to the misconstruction
of the relevant regulations the student suffered
the loss of one year. He
therefore filed the suit against the College and the principle claiming
compensation for his loss.
Issue - Whether
the claim of the plaintiff
falls under any of the heads of torts recognised in common law.
Held
- This suit was dismissed by the court on the ground that it was not
maintainable. Every breach of legal
provision does not give rise to an action in the tort. The provision in the
regulations regarding the form of maintenance of attendance register
did not; for the
purpose of law of torts entail a duty on the part of the principal towards the students,
a breach of which
would be actionable.
Refusal of employment
Facts
- The plaintiff was the owner of a tug which was employed by the government pilots
in the Hooghly region for towing their ships. A troop
ship arrived in Hooghly. The plaintiff demanded a very high price
for towing the ship, resulting in which the superintendent
of marine issued the order to the officers of the government pilot service not to employ this particular tug
in the future. The plaintiff was then left unemployed by the government and suffered damages.
He therefore brought
a suit against the Superintendent for compensation.
Issue - Whether
it could be counted as a Tortious
act by the superintendent.
Held
- It was observed by the court that the employment of services is a free act.
The plaintiff therefore had no legal
right to have their tug employed by the government. Therefore not employing
them does not give rise to any Tortious liability and the action
was dismissed.
Damage to wall
Facts
- The defendant had built two pucker walls on the North and South of his house. As a result of which water between the
plaintiff’s house flows through lane which belongs to the defendant but it damages the walls of the plaintiff. The plaintiff brought
a suit against the defendant from constructing any wall and demolishing
the ones present.
Issue - Whether the allegations of the plaintiff can be upheld and the defendant
is made liable for it.
Held
- If the water from the walls of the defended flows on towards the wall of
plaintiff, then since the plaintiff
has not acquired any easementary rights, he cannot
ask for relief
he has sought. The defendant by building walls on his own land has not
in any way violated plaintiff’s right
and does not then amount to a Tort. This then is a case of Damnum
sine injuria and therefore no right of action accrues to the plaintiff.
Not
Offering Food to Idol
Facts - The plaintiffs were the servant
working in a temple. They had
a right over the food that was offered to the idol. The
defendant, who is the person responsible for
offering the food, had
omitted to do so several
times. The plaintiffs brought a suit against the defendant for not offering
the food and therefore the damages that they suffered due to it.
Issue - Whether
offering food to an idol can be termed
as a duty in law.
Held
- It was observed by the respective court that though it is the right of
the servants over the food that is
offered to the idol, the person offering the food has no legal obligation to do so. Not offering
food to an idol does not constitute a tort in the eyes of law.
CONCLUSION
It is a fair observation that it is important to be familiar
with the fundamentals of the tort law in order
to navigate through the fields of civil wrongs or personal injury claims. While
discussing the important aspects of
tort law, we have majorly focused on two broad principles of the tort law which are: injuria sine damno and damnum sine injuria.
Injuria
sine damno refers to the case where legal injury is involved but it does not
lead to any actual damages to the
person. It lays down the principle that certain actions which may not cause any real harm to the person but
result in legal injury would be liable to be compensated through claim. This brings into attention the significance of
legal injury, that an individual can be compensated when there is legal injury irrespective of the fact whether it results into actual losses or not.
On
the other hand, Damnum sine injuria refers to cases where the individual does
suffer losses, but no actual injury
is involved. It formulates the principle that not all the damages suffered, or harm caused can be translated into
actionable claims, there has been to an infringement on a legal right in order to seek compensation.
Thus, both the
principles reinforce the fact
that law does not deal with the ordinary problems of everyday
life, it does not concern with those situations but rather only comes into
action when a legal right is
infringed. It is the duty of the law to protect the individuals against harm caused
to them but not unnecessarily every harm which is
not legally wrong.
It
is further noted that these principles are more flexible rather than being
rigid. Whether compensation would be granted or not primarily
depends on the factual context
of the case, the severity
of the injury caused and taking into consideration various other factors as are deemed
necessary for the case.
It is again submitted that both these principles establish the significance of social
policy in tort
law as they cater to lower the burden of excessive litigation. These
principles are adamant to inculcate
the broader principles of a fair society by distinguishing between mere harm
and actual legal injury that must be compensated.
BIBLIOGRAPHY
Cases Referred
1.
Ashby v. White, (1703)
2 Ld. Raym. 938.
2.
The Municipal board of Agra v. Asharfi
lal, (1992) 44 All 202.
3.
Marzetti v. Williams, (1830)
1 B & Ad 415.
4.
Acton v. Blundell, (1843)
12 M & W 324.
5.
Stephens v. Anglian Water Authority, (1987)
3 All ER 379(CA).
6.
Wilson v. Waddell, (1876)
2 App Cas 95.
7.
Gloucester grammar
school case, 91410) YB 11 Hen 14, fo
47, pl 21, 23
8.
Mogul
Steamship Co v. Mc Gregor, Gow&
Co, (1892) AC 25
9.
Day v. Browning, (1878)
10 Ch D 294
10.
Butt v. Imperial Gas Co, (1866)
LR 2 Ch App 158.
11.
Dickson v. Reuter's Telegraph Company, (1877) 3 CPD 1.
12.
Electro chrome
Ltd. v. Welsh plastics Ltd., (1968)
2 All ER 205.
13.
Vishnu dutt Sharma v. board
of high school and
intermediate examination, AIR 1981 All 46.
14.
Rogers v. rajendro dutt, (1860) 8, MIA 103.
15.
Anand Singh
v. Ramchandra, AIR 1963 MP 28.
16.
Dhadphale v. Gurav, (1881)
6 Bom 122.
Books Referred
1 The Law of Torts,
26th Ed., by Ratanlal and Dhirajlal
2. The Law of Torts,
24th Ed., by R. K. Bangia
[1]
Author- Navna Singh, Assistant Professor, School of Law, Mody University of
Science and Technology Lakshmangarh, Rajasthan,
navnasingh.clg@modyuniversity.ac.in ,9530196706.
Co- Author- Khushnoor Kaur, B.A.LL.B. (Hons.) Fourth
Year, Amity University, Jaipur, Khushnoorrandhawa@gmail.com, 9462955410
[2] Ashby v. White, (1703) 2 Ld. Raym.
938.
[4] Marzetti v. Williams,
(1830) 1 B & Ad 415.
[6] Stephens v. Anglian
Water Authority, (1987)
3 All ER 379(CA).
[7] Wilson v. Waddell,
(1876) 2 App Cas 95.
[8] Gloucester grammar school
case, 91410) YB 11 Hen 14,
fo 47, pl 21, 23
[10] Day v. Browning, (1878) 10 Ch D 294
[11] Butt v. Imperial
Gas Co, (1866) LR 2 Ch App 158.
[13] Electro chrome Ltd. v. Welsh plastics Ltd., (1968) 2 All ER 205.
[14] Vishnu dutt
Sharma v. board of high
school and intermediate examination, AIR 1981 All 46.
[15] Rogers v. rajendro
dutt, (1860) 8, MIA 103.
[16] Anand Singh v. Ramchandra, AIR 1963 MP 28.
Article Information
FUNDAMENTALS OF TORT AND DISCUSSION ON INJURIA SINE DAMNO & DAMNUM SINE INJURIA
Authors: Navna Singh, Khushnoor Kaur
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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