Damage and Liability in Tort. Often times, for a defendant to be held liable for a tort, the plaintiff must have suffered damage as a result of the conduct of the defendant. Where damages has been proved by a plaintiff, then the test of reasonable foreseeability it remoteness of damage will be applied to determine the extent, scope or amount of damage for which the defendant will be held liable, and ordered to pay to the plaintiff. However, because damage does not always lead to liability, three principles therefore exist with respect to damage. These are:
- Damage without legal wrong (i.e. Damnum Sine Injuria): It means that there is no legal remedy even though loss was suffered.
- Legal wrong without damage (i.e. Injuria Sine Damnum): It means that there is liability and remedy based on fault, even though there is no damage.
- Damage Leading to Tortious Liability and Legal Remedy:
This is where there is a situation of damage and legal remedy. Is the commonest situation in most torts and civil claims.
The word “damage” means the money compensation which is usually paid by a wrongdoer to a person who has suffered a loss or injury. Thus, damage is the estimated money compensation which court usually orders a defendant to pay to a plaintiff or claimant who has suffered a loss or injury.
Damage without a Legal Wrong: Damnum Sine Injuria – Damage and Liability in Tort
This is a loss or damage which does not have a legal remedy.
Damage without legal injury is where a wrong or damage has been done to a person, nevertheless, the person has no right of action to recover compensation, because no legal wrong has been committed. It is a damage suffered without the breach of a legal right.
Though, the mere fact that a person has been harmed does not entitle him to maintain action, unless a legal wrong has been done to him. For a suit to succeed, the damage must result from a breach of a legal right of the plaintiff. Where damage is suffered without the breach of a legal right, it is known as Damnum Sine injuria, that is, damage without injury.
Examples of damages without legal injury are:
- Trade compensation
- Defamation on a privileged occasion
- Lawful use of property, or lawful conduct
- Trade Compensation: Trade compensation among several traders who are selling the same or similar goods or services may cause harm to a trader who cannot compete, thereby leading to a loss of customers and livelihood.
For instance, where a big supermarket or dealer sets up a business next to a small retailer and sells at cheaper prices, as a result of which the retailer being unable to compete is forced to close down his business, harm is done to him as his livelihood is lost and he may suffer other consequential losses. Nevertheless, there is no longer committed by the big supermarket. Thus, right of action will not lie and no remedy will be offered to the retailer who has suffered.
In the case of Mogul Steamship Co. V. McGregor Gow & Co. & Ors (1892) AC 25 HL (1891-4) All ER Rep.263, the plaintiff appellant company and the defendant respondent companies were rival traders in China tea. The defendants formed an association to the exclusion of the plaintiff and persuaded tea merchant in China not to act as the plaintiff’s agents, otherwise their agency would be withdrawn by the association.
The plaintiff then brought action against the association defendant alleging a civil conspiracy to injure the plaintiff trade. The House of Lords held: that the defendant companies acted with the lawful object of protecting, extending their trade and increasing their profits, and since the means they used were not unlawful, the plaintiff had no cause of action even though the plaintiff may have suffered injury. Trade conspiracy per se without more is not a tort unless it is accompanied by some unlawful act.
NOTE: where right of action is based on the occurrence of a legal wrong or legal damage, a tort or wrongful act is not actionable per se, upon commission, unless a legal wrong or legal damage is done to the plaintiff. In such instances, liability only attaches when damage is caused to the plaintiff, and the plaintiff will only succeed if he can prove that the defendant has infringed his legal right.
2. Defamation made in a Privileged Occasion:
Another example where there is damage but there is no right of action, is when a defamatory statement is made on a privileged occasion. This is a situation where a person is defamed, but the plaintiff has no right of action, because the defamation was made on a privileged occasion to the plaintiff but there is no legal wrong done, and consequently there is no right of action to recover compensation for defamation, see the case of Ayoola V. Olajure (1977) CCHCJ315. Privilege is a special legal right or immunity granted to a person or persons. Absolute privilege is immunity from lawsuit, usually a lawsuit for defamation.
3. Lawful use of Property:
As a general rule, lawful use of property or lawful conduct without more is not a legal wrong against which of action and remedy lies. However, when lawful use of property degenerate or graduates into nuisance or other legal wrong or breach of law, right of action and remedy then lies.
This is an offence of willfully telling an untrue or making a misrepresentation under oath. In addition, if a person goes to court and gives any evidence which the person knows to be false, or which the person does not believe to be true, he commits the crime of perjury, and if he is discovered he may be prosecuted and sanctioned for it, in criminal law, See the case of R V. Peach (1990) 2 All ER 966. However, whether or not the person is discovered and prosecuted for it, the party who is injured by the perjury has no right of civil action for remedy in respect of the perjury per se, although he may be able to go on appeal on other points of law in the proceedings in which the perjury was committed.
In the case of Hargreaves V. Bretherton (1958) 1 QB 45, (1958) 3 All ER 12, the plaintiff brought action for damages against the defendant on the ground that the defendant had falsely and malicious and without just cause committed perjury as a witness by giving false evidence at the trial of the plaintiff for certain criminal offences, and that consequently he the plaintiff had been convicted and sentenced to eight years imprisonment. The court held that no right of action lay as the plaintiff’s action was based on the purported tort of perjury; there is no tort of perjury.
In the case of Roy V. Prior (1971) AC 470, Evans V. London Hospital Medical College (1981) 1 WLR 184, the plaintiff sued the defendant for damages alleging inter alia that the defendant caused his arrest and forcible attendance at court to give evidence as a witness in a criminal proceeding by falsely saying in court that the plaintiff was evading a witness summons. It was held that there was no tort of perjury and therefore no cause of action lay against the defendant.
5. Legal wrong without damage: INJURIA SINE DAMNO
Literally, legal wrong without damage means legal wrong without loss. It is the breach of a person’s legal right but without damage to the person. 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 are known as “tort 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 the written form) which is also actionable though no actual damage is proved.
The principle of legal wrong without damage or injuria sine damno is an exception to the general that there must be damage or injury, before action may e brought against a wrongdoer in tort. To succeed in a claim for compensation, in tort that is actionable per se, the plaintiff only needs to prove on the basis of probability, that the tort he alleges was committed.
However, the plaintiff need not go on to establish damage, except where he actually suffered damage, in which case the amount of damage the plaintiff will recover will accordingly be increased beyond nominal damages (Nominal damages is a small sum of money awarded as damages to someone who has suffered a legal wrong but no actual financial loss.
Examples of torts which are actionable per se, upon commission without the necessity of establishing damage includes:
- Libel and sometimes slander
- Trespass to person
- Trespass to chattels
- Trespass to land
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