The word tort has been derived from the Latin word “tortum”, which means ‘to twist’. Basically, tort means conduct which is not straight or lawful, but, on the other hand, twisted or unlawful. Tort in Indian provision has been defined under the Limitation Act, 1963 under Section 2 (m) as “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” Salmond has to define tort as “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of contract or breach of trust or other merely equitable obligation.”
ESSENTIAL CONSTITUENTS OF TORT
There are three essential constituents of contract:-
- Wrongful Act: There must be a wrongful act committed by a person or wrongful omission of the act done by the defendant. A wrongful act or wrongful omission must be recognized by law. The wrongful act was with respect to legal rights.
- Legal Damage: The wrongful act must give rise to legal damage to a person, that is, the plaintiff. It has to be proved that there was a wrongful act or omission, which causes a breach of legal duty causing legal damages.
- Legal Remedy: When there is a wrongful act or omission which is recognized in law then, there must be some legal remedy to overcome or compensate for the loss.
To know whether a person should be held liable for a tort or not these three essentials need to be present that there must be a lawful right, that lawful right has been violated and there is a remedy provided in law for the wrongful action to bring plaintiff to a position where he originally was.
Tort is a civil wrong provides for remedy, in the common law. Law of Torts came from the fresh word which means twisted or wrong; it is based on the old remedies of trespass. Injuria Sine Damnum is a legal maxim derived from Latin word which means that injury caused to a party without actually suffering any physical harm or damage. In Latin ‘Injuria’ means injury, ‘Sine’ means without and ‘Damnum’ means damage. Whenever there is an infringement or invasion of legal right, the person whose legal right was violated can approach to recover damage, though he may not have suffered actual harm. There are two kinds of torts[1]:
- Those torts which are actionable per se- actionable without the proof of any damage or loss.
- Torts which are actionable only on proof of damage caused by an act.
Injuria sine damno falls under the first category, there is no requirement to prove that as a consequence of an act, the plaintiff has suffered any harm. The opposite of it is Damnum Sine Injuria which means that there is damage but without any legal injury.
INJURIA SINE DAMNUM
The maxim has been very well dealt in the case of Ashby v. White[2] plaintiff who was a qualified voter at a parliament election, defendant who a returning officer was refused the plaintiff to cast the vote. The plaintiff did not suffer any loss per se as the candidate in whose favor he wanted to vote won the election but his legal right was violated. The court held that the defendant is liable to pay compensation to the plaintiff as his legal right to vote was violated. The defendant committed the tort.
It has been stated that when having a right he must necessarily exercise as per his convenience but if that right gets violated at any point in time or whether there was curtailment in the enjoyment of the right then there must be the remedy. Where there is a right, there is a remedy. It makes sense, but if there is no remedy for the right, then it will go in vain.
Another Indian case on the same ground is Bhim Singh v. State of Jammu & Kashmir[3], in this case, the plaintiff was an M.L.A of Jammu & Kashmir parliamentary assembly. When he was going to attend the assembly session, police arrested him wrongfully and was also taken to the Magistrate within 24 hours. Plaintiff was deprived of his legal right as well as a fundamental right under Article 21 of the Indian Constitution was violated. The defendant was held liable and had to pay compensation of Rupees 50,000. The court in the case provided exemplary damages for the same.
Damage received by the plaintiff is because of the loss suffered; therefore the amounts for damages are determined just to compensate the victim. The court is bound to award to the plaintiff at least nominal damages for the loss suffered by the plaintiff. It is to bring the plaintiff to a position at a place whereas if no wrong was committed, to bring back to the original place. Along with this maxim another maxim is also related to it is “Ubi jus ibi remedium:” which means that “Whenever there is a legal right there is a legal remedy.” sometimes it is expressed as there is no wrong without a remedy.[4]”
In another case of Marzetti v. Williams[5], the plaintiff was an account holder who was having an amount in his account he went to withdraw money by Self cheque. Though there was a sufficient amount in his account, the defendant banker refused to pay the plaintiff without any reason. So the plaintiff filed a suit against the defendant banker for damage. The court held that though the plaintiff suffered no monetary loss, the defendant is liable to refuse the customer cheque and hence suffered tort.
DAMNUM SINE INJURIA
It means damage which is not attached to an unauthorized interference with the plaintiff’s legal right. Damage is caused it may or may not be substantial, to another person and is not actionable in law unless there is also the violation of a legal right of the plaintiff. The most terrible harm may be inflicted on one man by another without a legal redress being obtainable as the doer did not infringe any legal right of the sufferer.
To explain further, the case, Gloucester Grammar School Case[6]– Defendant was a teacher in the plaintiff’s school and thereafter started his own school. Due to some dispute defendant left the plaintiff school and started his own school. As the defendant was very much liked by his student, children left the plaintiff school and joined the defendant school. Plaintiff sued the defendant for monetary loss. It was held that the defendant was not liable. Compensation is no ground of action as no legal right is violated.
In Chasemore v. Richardson[7]Plaintiff was running a mill on his own land, and for this purpose, he was using the water of the stream for a long time. The Deft dug well in his own land and thereby cut off the underground water supply of stream. Through percolation, the water gathered in the well of deft. The quantity of water of the stream was reduced and the mill was closed for non-availability of water. Plaintiff sued deft for damage. The court held that the Defendant was not liable, because of the principle of Damnum sine injuria. There was no violation of legal rights, though the actual loss in money.
DIFFERENCE BETWEEN THE TWO:-
- Injuria sine damno means Injury without damage or it means an infringement of an absolute private right without any actual loss or damage, whereas Damnum sine injuria means damage without infringement of any legal right.
- Injuria sine damno is equal to tort whereas in the case of Damnum sine injuria is not equal to tort.
- Injuria sine damno damages or remedy is provided whereas in the case of Damnum sine injuria no damages are provided sometimes maybe nominal damages may be provided.
JURISDICTION
District Court up to the jurisdiction available under the different provisions as well as High Court has jurisdiction to deal with the subject matter but when a substantial question of law is in question, the Supreme Court can also intervene. The example is the case of Bhim Singh v. State of Jammu & Kashmir where the matter went to the Supreme Court. Special provisions have been made to deal with special tort cases such as the Consumer Protection Act, Motor Vehicle Act.
CONCLUSION
Law of Torts is a branch which resembles other law, but if different from them in other respects. Though there may be differences in opinion among the jurist with respect to the liability in torts, the law has been developed. In the case of injuria sine damno the infringement of private right without any actual loss or damage suffered. Every person has an absolute right to his person, property and liberty, but no action can be maintained when there is neither damno nor injuria. In India, it is not necessary to show any legal damage if the legal right is infringed. Offence like libel, assault, battery etc., is a mere wrongful act that is actionable without proof of actionable damage. But if the legal right is not violated any damages could be provided even though there was a substantial loss.
[1] Law of Torts, Dr. R.K. BANGIA- 24th Edition
[2] (1703) 2 Lord Raym, 938
[3]A.I.R 1986 S.C. 494
[4]http://www.infipark.com/articles/injuria-sine-damnum/
[5] 1830
[6] 1440
[7](1859) 7 HLC 349
Also Read – Injuria Sine Damno & Damnum Sine Injuria
