General Principles of Tortious Liability –
There is two Principles of Tortious Liability-
- Damnum Sine Injuria
- Injuria Sine Damno
1.Damnum Sine Injuria –
Damages without the violation of legal right is not actionable.
It means “actual loss that arises in the absence of a legal loss”. Financial losses or economic losses ( actual losses) which are not violative to legal rights are not actionable in tort. In cases, where damage is caused without any breach of legal right, there may not be a cause of action in the court of law. It means no remedy would be present in case where is no infringement of legal rights.
In Gloucester Grammar School Case,[i]
The defendant had set-up a rival school to that of the plaintiffs. With the result that the plaintiffs were required to reduce the tution fees of their school substantially. It was held that the plaintiff had no cause of action against the defendant on the ground that bona fide competition can afford no ground of action, whatever damage it may cause.
In Mogul Steamship co. v. McGregor Gow and Co.[ii]
A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The house of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.
In Ushaben v. bhagyalaxmi Chitra Mandir, [iii]
The plaintiffs sued for a permanent injunction against the defendant to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Lakshmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognised as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act. Because it did not fit in with the tenets of his particular religion. Since there was no violation of legal right, request of injunction was rejected.
In Action v. Blundell,[iv]
The defendants by digging a coalpit intercepted the water which affected the plantiff’s well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed “The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within description damnum sine injuria which cannot become the ground of action
In Chesmore v. Rechards,[v]
The plaintiff, a millowner, was for the past 60 years, using water for his mill from a stream which was fed by rainfall percolating through underground strata to the stream, but not flowing in defined channels. The defendants sunk a well on their land and pumped large quantities of water, which would otherwise have gone to the plaintiff’s stream, thereby causing loss to the plaintiff. For this, the defendants were held not liable.
2. Injuria Sine Damno
Violation of a legal right without causing any harm, damage or loss to the plaintiff is actionable in court of Law.
Every person has a right of his property, immunity, liberty and if any one infringes them then it may be actionable in court of law. In this case, it is not necessary for the person to show any special damage(actual damages viz; money).In such cases, there is no need to prove that as a consequence of an act, the plaintiff has suffered any harm. For a success action, the only thing which has to be proved is that the plaintiff’s legal right has been violated i.e. there is injuria.
When the matter is relevant to assault, false imprisonment, battery, libel, trespass on land etc. then sole wrongful act is actionable, although proof of special damage( actual damage) is absent. The court would be bound to provide compensation to the plaintiff of at least a nominal nature, even in cases where no actual damage has been proven.
Ashby v. White[i]
This is a leading case explainig the maxim injuria sine damno. In this case, the plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election in spite of that.
It was held that the defendant was liable. Holt, C.J. said : “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 of 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 Bheem Singh v. State of J&K [ii]
The petitioner, an M.L.A.of J.&K. Assembly was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the magistrate within requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the Assembly session. There was also a violation of fundamental right to personal liberty.It is guaranteed under article 21 of the Constitution. By the time the petition was decided by the supreme court, Bheem Singh had been released, but by way of consequential relief, exemplary damages amounting to rupees 50,000 were awarded to him.
In case of Injuria sine damno, the loss suffered by the plaintiff is not relevant for the purpose of a cause of action. It may be relevant only as regards the measure of damages. If the plaintiff has suffered no harm and yet the wrongful act is actionable, the question which arises is how much compensation is to be paid to the plaintiff? In such a case generally nominal damages may be awarded.
For instance, the amount of compensation payable maybe just 5 rupees. The purpose of law is served insofar as the violation of legal right does not remain without a legal remedy.
[i] (1703) v. Lord Raym, 938
[ii] A.I.R. 1986 S.C. 494.
[i] (1410) Y.B. Hill 11 Hen
[ii] (1892) A.C. 25.
[iii] A.I.R. 1981 All. 46.
[iv] (1848) 12 M. & W. 324.
[v] ( 1859) 7 H.C.L. 349.