General Principles of Tortious Liability

The purpose of the Law of Torts is to prevent unjustifiable injury to a person. An

action of tort is usually a claim for pecuniary compensation in respect of damages
suffered as a result of the invasion of a legally protected interest. Tortious liability
arises from breach of a duty fixed by law; this duty is towards persons generally
and its breach is redressible by an action for unliquidated damages. A tort is an act
that injures someone in some way, and for which the injured person may sue the
wrongdoer for damages .A negligent or intentional civil wrong is not arising out a
contract or statute.Tortious liability can be categorized into personal/ primary
liability and secondary liability. Legal concept of tort may be said to comprise of
two facets-acts and mind. Act represents physical element and mind represents
mental element.

The following conditions must be present before liability in tort:-

 There must be a wrongful act committed by a person

 The wrongful act must result in legal damage to another
 The wrongful act must be of such a nature as to give rise to a legal
remedy in the form of an action for damages.

Wrongful act committed by a person

The act complained of should be wrongful i.e. it must prejudicially affect him in
some legal right. Act also includes the omission. An act which prima facie appears
to be innocent may became tortious if it invades the legal rights of another person.
Legal right is legally protected interest. It is a capacity residing in one person of
controlling with assent and assistance of the state the action of others. The term
legal right obviously means rights recognized by law and capable of being
enforced at the law court such rights are recognized and protected by the state.

Legal Damage

In the Law of Tort it is not every damage which can be foundation for an action in
tort; it must be the damage in the eyes of law. There may be a wrong done to a
person, but if it had not caused him actual legal damage, an action in tort is not
maintainable.

The ingredients of legal damage are Infringement of legal right and presumption of
injury or damage in law, in case an absolute right has been violated

Types of Damages under Law of Tort:- There are two types of damages under law
of tort i.e. general Damages and specific Damages

General damages are the non-pecuniary losses, the losses that cannot be
calculated in terms of money. They include the pain, suffering and shock suffered
by a plaintiff as a result of assault; loss of amenities of life such as reduced
enjoyment of life due to damage; inconvenience and discomfort; Exemplary
damages, where the conduct of the defendant been so scandalous that more
punitive damage needed to be awarded.

Specific Damages are the pecuniary equivalent of the actual loss sustained. It
includes medical expenses incurred by the reason of bodily harm; loss of business
due to libel.

The real significance of the legal damage can be illustrated by two maxims:-

Injuria sine damno

Damnum sine injuria

The general principle is that if there is a right, there is a remedy for its violation.
The remedy is available, though the injury does not cause actual or pecuniary
damage. If the plaintiff cannot show a violation of his legal right he cannot succeed
merely on the ground of damage.

Injuria Sine Damno means Legal Injury without Damage .Infringement of

legally protected interest without actual physical loss. Injuria means infringement
of the legally protected interest (i.e. right) of the plaintiff. Sine means without or
absence. Damno means actual physical loss whether in term of money, comfort,
health, service. In cases of injuria sine damno, the infringement of a legal private
right without any actual loss of damage, the person whose right is infringed has a
cause of action. It is based on the legal maxim ex injuria sine damno oritur actio
means an action arises from a wrongful act of party, although no pecuniary loss
has taken place.

This maxim means infringement or violation of a legal private right of a person

even if there is no actual loss or damage. In such a case the person whose right is
infringed had a good cause of action. It is not necessary to prove special damages.
The infringement of private right is actionable per se. What is required to show is
the violation of a right in which case the law will presume damage. Thus, in cases
of assault, battery, false imprisonment, libel etc., the mere wrongful act is
actionable without proof of special damage. The- court is bound to award to the
plaintiff at least nominal damages if no actual damage is proved. Thus, this maxim
provides for, (1) infringement of a legal right of a person. (2) no actual loss or
damage is required to prove. (3) Infringement of a private right is actionable per
se. In injuria sine damno, there are the cases in which the act is actionable as a
tort although it has been the cause of no damage at all.

Thus there are two kinds of torts:

 those which are actionable per se i.e. without proof of actual damage

 Those which are actionable only on the proof of actual damage resulting
from them.

In the former kind the law presumes damage because certain acts are so likely to
result in harm owing to their mischievous tendency that the law prohibits them
absolutely. Whereas latter are those in which there is no such presumption and
actual damage must be proved. In injuria sine damno, there are the cases in
which the act is actionable as a tort although it has been the cause of no damage
at all.Leading case on this maxim is Ashby vs. White (1703)2 Lord Raym 938,
defendant a returning officer wrongfully refused to register a duly tendered vote
of the plaintiff, who was a qualified voter. The candidate for whom the vote was
sought to be tendered was elected and no loss was suffered by the rejection of
the plaintiff’s vote. Lord Holt C.J. Held that “the action was allowed on the ground
that the violation of plaintiff's statutory right was an injury for which he must
have a remedy and was actionable without proof of pecuniary damage”.
In Marzetti vs. William (1830)1b&Ad415 a cheque was presented to the banker
for clearance. Bank was having sufficient amount to honour it but they refused to
honour it. Court held that an action would lie against a banker, having sufficient
funds in his hands belonging to a customer, for refusing to honour the cheque,
although the customer did not thereby sustain any actual loss or damage.

In another case Constantine vs. Imperial London Hotels, 1944 KB 693Plaintiff was
a famous West Indian Cricketer who had come to London for test matches. He
was wrongfully refused accommodation in a hotel of his choice. He therefore,
brought an action against the defendant hotels though he has suffered no loss or
damage by such refusal. The court awarded nominal damages of five guineas
which the defendant had to pay him for the breach of his right.

Similarly in Bhim Singh vs. State of J&K air 1986 SC 494 petitioner was an M.L.A. of
Jammu & Kashmir Assembly was wrongfully detained by the people while he was
going to attend the assembly session. The court awarded exemplary damages of
rupees 50,000 by way of consequential relief.

Damnum Sine Injuria -Damage without injury is not actionable. Where the
defendant’s act has not resulted in violation of any of the plaintiff’s legal right, he
cannot claim damages merely on the basis of loss or harm caused to him and
action will fail. It means that mere pecuniary damage does not give rise to a cause
of action in torts unless it is accompanied by infringement of the plaintiff’s right.
Therefore, there are many acts or omissions which may be harmful, but they are
not wrongful in the eyes of law because they do not involve violation of a legal
right. Damnum sine injuria means an actual and substantial loss without
infringement of any legal right. In such a case no action lies. There are harms of
which loss takes no account and mere loss of money's worth does not by itself
constitute a legal damage. The essential requirement is the violation of a legal
right. There are many forms of harm of which the law takes no account, (1) Loss
inflicted on individual traders by competition in trade, (2) Where the damage is
done by a man acting under necessity to prevent a greater evil, (3) Damage
caused by defamatory statements made on a privileged occasion, (4) Where the
harm is too trivial, too indefinite or too difficult of proof, (5) Where the harm
done may be of such a nature that a criminal prosecution is more appropriate for
example, in case of public nuisance or causing of death, (6) There is no right of
action for damages for contempt of court.

Landmark judgement on this maxim Gloucester Grammar School Case (1410) YB

11HenIV Foli47PL 21, a school master set up a rival school to that of the plaintiff’s
school with the result the plaintiff had to reduce their fees from 40 pence to 12
pence per student quarter in order to prevent decrease in number of students. He
therefore, filed a suit against the defendant for damages. It was held that the
plaintiff had no remedy for the loss suffered by him. Quoting an illustration
Hankford J. observed, “If I have a mill and my neighbour builds another mill
thereby the profit of my mill is diminished, I shall have no action against him,
although I have suffered damage, but if the miller disturbs the water supply of my
mill, or does any nuisance, I shall have an action for damages against him.

In Area Town Committee vs. Prabhu Dayal AIR 1975 All 132, Prabhu Dyal had
made construction of 16 shops on the old foundations of the building known as
Gashi. He filed a case against Area Town committee for the demolition of his
constructions protruding on the road without due notice. The High Court of
Allahabad held that demolition of unauthorized construction i.e. shops by the
municipality had not violated any legal right of the respondents as the shops were
illegally constructed without any prior notification or permission from the
concerned municipal authority.

Similarly in another case, Mayor Steamship co. vs. Pickles (1895) AC 58

Corporation had a reservoir adjacent to Pickles’s land and Pickles wanted to force
the corporation to buy his land with a high price. The water that fed the reservoir
was coming through Pickles’s land and pickles dug up the soil of his land to stop
the water going into reservoir. Through defendant’s act was a lawful act as land
owner were allowed to interfere with underground water, the corporation argued
that what defendant did was driven by malice. Court rejected the argument put
forward by the corporation as what Pickels did was lawful act regardless of
whatever his reason for doing it.
In Dhadphale vs. Gaurav (1881)6 Bom 122,the servant of a Hindu Temple had a
right to get the food offered to the idol, but the person who was under an
obligation to the idol to offer food, did not do so. The servant brought a suit
against him for damages. It was held that the defendant was under no legal
obligation to supply food to the temple’s servants, and thought his omission to do
so might involve a loss to the plaintiffs. There should be a breach of legal duty,
and not a breach of religious duty.

In another judgement, Ushaben Trivedi vs. Bhagyalaxmi Chitra Mandir AIR 1978
Guj 13a suit was filed against the screening of the picture “Jai Santoshi Maa” on
the ground that certain scenes in the movie hurt the religious feelings of persons
having an interest in Hindu religion and mythology. The Court held that the courts
of law have not recognised hurt to religious feelings as a civil actionable wrong

Distinction between Injuria sine damnum and Damnum sine injuria

First on the basis of meaning,

Injuria sine damnum means violation of a legal right without actual loss or
damages where as Damnum sine injuria means actual or substantial Damages
without infringement of a legal right.

Second on the basis of action,

Injuria sine damnum is always actionable where as Damnum sine injuria is

never actionable.

Third on the basis of nature of wrong,

Injuria sine damnum contemplates legal wrongs where there is a remedy

where as Damnum sine injuria contemplates only moral wrongs without any
remedy.

Fourth on the basis of act of defendant,

 In Injuria sine damnum defendant acts illegally to violate legal right of the
plaintiff where as In Damnum sine injuria defendant acts legally and thereby
causes harm to the plaintiff.