Introduction : Damnum sine injuria
The law of tort is a collection of all the circumstances in which court gives a remedy by way of damages, for legally unjustified harm or injury done by one to another person. There are three elements which need to be proved before constituting a tort:
- There must be an act or omission on the part of the defendant.
- That act or omission must be in violation of a legal right vested in the plaintiff.
- The wrongful act or omission thus done by the defendant is of such a nature to give rise to a legal remedy.
Damnum Sine Injuria
This means literally “damage without legal injury”. It is a basic principle that damage is not actionable in tort unless such damage amounts to legal injury. Thus, if the defendant’s act is in itself lawful, he cannot be sued in tort, however much damage the plaintiff may have suffered as result of it.
It is for the courts themselves to decide what legal injury is and what is not. Social and commercial life would become intolerable if every kind of harm were treated as a legal redresible injury; for example business competition which drives a trader out of business is not actionable in tort, since the well being of society depends upon the right of every person to compete in business. There are many kinds of harm which, for various reasons, fall outside the scope of the law of torts.
In some cases the harm complained of may be too trivial (de minimis non curat lex), or too indefinite or incapable of proof; in others, policy may require that the courts should balance the respective interests of the plaintiff and the defendant, and that the defendant’s interest should prevail.
In others, harm may be caused by the defendant’s exercising of his own rights, or where he does damage to the plaintiff in order to prevent some greater evil befalling himself. In other cases, the harm caused may be protected by some other branch of the law, such as where a statute or the criminal provides a remedy, or where the harm consists merely of a breach of contract or breach of trust.
Injuria Sine Damno – Damnum sine injuria
This means literally “legal injury without damage”. Normally, in order to succeed in tort the plaintiff must prove that he has suffered actual damage (e.g. injury to his person or property or reputation) as well as legal injury. There are some torts, however, where actual damage need not be proved and it is sufficient to show an infringement of the plaintiff’s legal rights (i.e. legal injury). Torts which are actionable without proof of damage is known as “torts actionable per se”: examples are trespass, which is actionable though no harm at all is caused to the land, person or chattel as the case may be, and libel (i.e. defamation in written form) which is also actionable though no actual damage is proved.