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AMITY UNIVERSITY RAJASTHAN

AMITY LAW SCHOOL
LAW OF TORTS

Submitted to: Submitted by:

Dr. PRATEEK DEOL RABAB NAWAB

ALS-AUR(HONS.) Enrolment No. -

A21521520025

B.B.A. LL. B (H.)

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TABLE OF CONTENTS

Damages……………………………………………………………….5

Legal Damages…………………………………………………………5

Two Kinds Of Injuries………………………………………………….6

A. Damnum Sine Injuria……………………………………………7

i. Meaning Of Damnum………………………………………....7
ii. Meaning Of Injuria …………………………………………....7
iii. Meaning of Damnum sine Injuria…………………………….7
iv. Illustrative Cases On Damnum Sine Injuria………………….9

B. Injuria Sine Damnum …………………………………………….10

i. Meaning Of Injuria sine Damnum …………………………….10

ii. Illustrative Cases On Injuria Sine Damnum……………………12

Conclusion………………………………………………………………………..12
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TABLE OF CASES

1. ROGERS V. RAJENDRO DUTT (1860) 8 M.I.R. 103.

2. ASBHY V. WHITE (1703) 2 LD. RAYM. 938 (955)
3. WINSMORE V. GREENBANK, (1745) WILLES 577 (581)
4. MOGHUL STEAMSHIP V. MCGREGOR (1892) A.C. 25
5. CHASEMORE V. RICHARDS (1895) 7 H.L.C. 349
6. ACTON V. BLUNDELL, (1843) 12 M & W 324
7. MOGHUL STEAMSHIP V. MCGREGOR (1892) A.C. 25
8. CHASEMORE V. RICHARDS (1895) 7 H.L.C. 34
9. ACTON V. BLUNDELL, (1843) 12 M & W 324
10. DAY V. BROWNING, (1873) 13 CH. D. 394
11. WILSON V. WADDELL (1872) 2 APP CAS 95
12. VISHNU DUTT SHARMA V. BOARD OF HIGH SCHOOL AND INTERMEDIATE
EXAMINATION, A.I.R. 1981 ALL 46.
13. DHAHPHALE V. GAURAV (1881) 6 BOM. 122.
14. USHABEN TRIVEDI & ANOTHER V. BHAGYALAXMI CHITRA MANDIR & OTHERS,
A.I.R. 1978 GUJ. 13
15. ROUSE V. GRAVEL WORKS LTD., (1940) 1 K.B. 489
16. BHIKHI OJHA V. HARAKH KANDU (1889) 9 AWN 89
17. NARAYAN V. BALKRISHNA (1872) 9 BHC (ACJ) 413
18. PURSHOTTAMDAS PRABHUDAS V. BAI DAHI, (1940) 42 BOM LR 358
19. ASBHY V. WHITE, (1703) 2 LD. RAYM. 938.
20. THE MUNICIPAL BOARD OF AGRA V. ASHARFI LAL, (1922) 44 ALL 202
21. MARZETTI V. WILLIAMS, (1830) 1 B & AD 415.
22. MORNINGSTAR V. FAFAYETTE HOTEL COMPANY, 211 N.Y. 4

BIBLIOGRAPHY
BOOKS REFERRED
1. SALMOND, JURISPRUDENCE, 12TH EDN, (1966), P 355
2. RATANLAL & DHIRAJLAL 28th EDN. (THE LAW OF TORTS)
3. N.H. JHABVALA (THE LAW OF TORTS)

WEBSITES
1. https://scc-amity.refread.com/Members/SearchResult.aspx
2. http://www.indiankanoon.org
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DAMAGES
“ Damage” means the harm or loss suffered or presumed tо be suffered by а рersоn as а result
оf sоme wrоngful асt оf аnоther.The sum of money аwаrded by соurt to соmрensаte the
“dаmаge” саused is саlled “damages”.There must be violation оf а legal right in саses оf
tоrt.Every аbsоlute right, injury оr wrоng i.e., tortuous асt is complete the moment the right is
viоlаted irresрeсtive оf whether it is ассоmраnied by and асtuаl damage. In саse оf
qualified right, the injury оr wrоng is nоt соmрlete unless the viоlаtiоn оf the right
results in асtuаl оr sрeсiаl dаmаge. Every injury, thus imроrts damage, though may
nоt hаve соst the viсtim а рenny, but simрly by hindering the right, аs аn асtiоn fоr
а slаnderоus wоrd, thоugh а mаn dоes nоt lоse а рenny by sрeаking tо them, yet he
shаll hаve Frоm the роint оf view оf the рresumрtiоn оf dаmаge, rights аre classified intо
(1) аbsоlute (2) quаlified. When аn аbsоlute rights is viоlаted, the lаw соnсlusively
presumes damage аlthоugh the рersоn mаy wrоng mаy hаve suffered nо pecuniary
lоss whаtsоever. The dаmаge sо рresumed is саlled legаl dаmаge.

LEGAL DAMAGES:-

Legal damage means the invasion of a person’s legal right. Unless and until a person’s legal
right is violated, a tort does not arise. A person may be exercising his own right lawfully, and
in the course of doing so, he may cause pecuniary loss to some other person. But if that loss
is not a violation of legal rights, the act is not a tort.

As the privy council observed in Rogers v. Rajendro Dutt1, “The foundation of every action
in torts is an act which is wrongful, and which may be qualified legally as an injury.”

Also in the leading case of Asbhy v. White 2 which is the illustrative of violation of an
absolute right results, Lord Holt, C.J., observed:

Every injury imports a damage; though it does not cost the party one farthing, and it is
impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports
a damage, when a man is there by hindered of his right. As in an action for slanderous words
though a man does not lose a penny by reason of the speaking them, yet he shall have an
action. So if a man gives another a cuff on the ear, though it costs him nothing, not so much
as a little diachylon (plaster), yet he shall have his action, for it is personal injury. So a man

1
Rogers v. Rajendro Dutt (1860) 8 M.I.R. 103.
2
Asbhy v. White (1703) 2 Ld. Raym. 938 (955)
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shall have an action against another for riding over his ground, though it does him no
damage; for it is an invasion of his property and the other has no right to come there.

The real significance of legal damage is illustrated by two maxims, namely, Injuria Sine
Damno and Damnum Sine (Or Absque) Injuria.

By Dаmnum is meаnt dаmаge in the substаntiаl sense оf mоney, lоss оf соmfоrt, serviсe,
heаlth, оr the like. By Injuriа is meаnt а tоrtiоus асt: it need nоt be willful аnd
mаliсiоus; fоr tоugh it be ассidentаl, if it be tоrtiоus, аn асtiоn will lie. Аny
unаuthоrized interferenсe, hоwever triviаl, with sоme аbsоlute right соnferred by lаw оn а
рersоn, is аn injury, e.g.The right оf exсluding оthers frоm оne’s hоuse оr gаrden.Аn асt mаy
be misсhievоus in twо wаys- either in its асtuаl result оr in its tendenсies.Henсe it is legаl
wrоngs аre оf twо kinds.The first соnsists оf thоse in whiсh the асt is wrоngful оnly be
reаsоn оf ассоmрlished hаrm whiсh in fасt ensues frоm it. The seсоnd соnsists оf thоse
in whiсh the асt is wrоngful by reаsоn оf its misсhievоus tendenсies аs reсоgnized
by the lаw, irresрeсtive оf the асtuаl issue.

Example on both the maxims:-

Problem:- “ Best coaching classes” were started in the vicinity of “Success Coaching”. As a
result, latter had to close down their classes. Can Success coaching Classes take any action in
the matter?

Ans:- No, Free and Fair competition does not amount to a tort, even if actual loss is caused
thereby. It is a case of Damnum sine Injuria.

Problem :-A was manageress of Jay Ltd., a firm dealing in ladies’ clothes. For several year, A
was known to her customers as miss Jay. A, after leaving the service of Jay Ltd., started a
rival establishment in the name of miss Jay. On seeing this, Jay Ltd. Sued A for deceptive use
of their trade name Advise A.

Ans:- In these circumstances, Jay Ltd. Will not succeed, as it is a case of damnum sine
injuria.
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Damnum Sine Injuria (Damage without injury)

In case of damnum sine injuria, that is, actual and substantial loss without infringement of
any legal right, no action lies, that is, no suit can be filed. Mere loss of money or money's
worth does not, off itself, constitute legal damage. The most terrible harm may be inflicted
by one man on another without legal redress being obtainable. There are many acts which,
though harmful, are not wrongful and give no right of action. Damnum may be Absque (that
is, without) injuria.

The cases which illustrate the maxim, damnum sine injuria, are many in number, but
underline principle is that the exercise of the ones common or ordinary right within the
reasonable limits does not give rights to an action in tort, Merely because its causes some loss
or damages to another. The reason underlying the rule is simple, namely, that would be
impossible to carry on the common affairs of the life without doing various things which are
more or less likely to cause loss or inconvenience to others. In every civilised society, the
exercise, however legitimate, by each member of his particular rights, or the discharge,
however legitimate, by each member of his particular duties, can hardly take place without
occasionally causing a conflict of interest which will be determinative to some others.

SETTING UP OF THE RIVAL SCHOOL:-

In Gloucester Grammar School Case – (1410 Y.B. 11 Hen. 4 ) - the defendant, or

schoolmaster, set up a rival school next to that of the plaintiff, with the result that the boys
from the plaintiff’s school flocked to the defendants . The plaintiff sued the defendant for
the loss. It was held that no suit could lie because bona fide competition can afford no ground
of action, whatever damages it may cost it may be noted that although free and fair
competition is allowed, a competition in which the legal rights of arrival are infringed, will be
a good crown for action. Thus, an action lies against a person for causing injury to another by
illegally interfering with the letters trade, business, or employment. Thus, in the Gloucester
Grammar School Case, if besides setting up a rival school, the defendant had interfered with
the plaintiff by illegally means, As for example, by intimidating the students at the plaintiff
school, so that they cheese to go there, the defendant would have been liable food stop in
such a case, the plaintiff would be entitled to damages or injunction or both.
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DRIVING RIVAL TRADER OUT OF MARKET:-

MOGHUL STEAMSHIP V. McGregor3 (shipowner’s case) :- This case affords another

interesting illustration of damage caused by fair competition. In the case A, B, C and D,
shipowners, who shipped tea from one port to another, combined together to drive F, a rival
shipowner, out of the trade, by offering special terms to the customers who would deal with
them to the exclusion of F. when F sued A, B, C, D for the loss caused to him by their Act, it
was held that F had no right of action, for no legal right of F had been infringed. Damage
caused by competition in trade is not actionable.

INTERCEPTION OF PERCOLATING WATER:-

A landowner and mill owner who had for about six years enjoyed the use of a stream, which
was chiefly supplied by percolating underground water, lost the use of a stream after an
adjoining owner dug on his own ground in extensive well for the purpose of supplying water
to the inhabitants of the district. In an action brought by the landowner it was held that he had
no right of action. The case of above factual matrix is illustrated below.

CHASEMORE V. RICHARDS4 (WATERMILL CASE) :- in this case, the plaintiff was the
owner of an ancient watermill. For more than 60 years, the occupier of the mill had been
using and enjoying the flow of river for the purpose of working the mill. The local Board of
Health sank a well in its own land and pumped-up large quantities of water, with the result
that percolating underground water which would have found its way to the river and helped
to work the plaintiffs mill, was being obstructed. With the diminution of water in the river,
the plaintiff found it is impossible to work his mill. The plaintiff sought to make the
defendant liable, but the court held that the doing of an act which is otherwise lawful cannot
give rise to an action in tort, however much it be attended with the laws to the party
complaining.

In Acton v. Blundell5, a landowner hello caring on mining operation on its land the usual
manner drain away the water from the land of another owner through which water floored in
a subterraneous course to his well, and it was held at the later had no right to maintain an

3
Moghul Steamship V. McGregor (1892) A.C. 25
4
Chasemore v. Richards (1895) 7 H.L.C. 349
5
Acton v. Blundell, (1843) 12 M & W 324
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action where the defendant intended to divert underground water from a spring that supplied
the plaintiff corporations works, not for the benefit of his own land, but in order to drive the
corporation to buy him out it was held at the defendants conduct was unneighbourly but
wrongful and therefore no action lay. The rule of the right of the landowner to appropriate
percolating underground water applies equally to brine.

USING OF NAME OF ANOTHER MAN’S HOUSE:-

DAY V. BROWNING6- The plaintiffs house was called “Ashford lodge” for 60 years and
adjoining house belonging to the defendant was called “Ashford villa” for 40 years. The
defendant then altered the name of his house and called it Ashford lodge. the plaintiff alleged
that this act of defendant had caused him great inconvenience and annoyance and had
materially diminished the value of the property. It was held that the defendant was not liable
as he had not violated any legal rights of a plaintiff.

DAMAGE CAUSED BY LAWFUL WORKING OF MINE:-

where a landowner by working his mines caused a subsidence of his surface, in consequences
of which the rainfall was collected and passed by gravitation and percolation into an adjacent
lower coal mine, it was held at the owner of the latter could sustained new action because the
right to work a mine was the right of property, which, when do we exercise, be got no
responsibility.7

LOSS OF ONE ACADEMIC YEAR :-

VISHNU DUTT SHARMA V. BOARD OF HIGH SCHOOL AND INTERMEDIATE

EXAMINATION8, the factual matrix is there was a student who was strongly detained for the
shortage of attendance by the principal on a misconstruction of the relevant regulations and
there by the students suffered the loss of one year. in a suit for a damage, it was held that the
suit was not maintainable as the misconstruction of the regulations did not amount to tort.

DAMAGE TO WALL BY WATER:-

In the case of ANAND SINGH V. RAMACHANDRA9, the defendant built two pacca walls on
his land on two sides of his house as a result of which water flowing through a lane belonging

6
Day v. Browning, (1873) 13 Ch. D. 394 (Ashford Lodge case)
7
Wilson v. Waddell (1872) 2 App Cas 95
8
Vishnu Dutt Sharma V. Board Of High School And Intermediate Examination, A.I.R. 1981 All 46.
9
Anand Singh v. Ramachandra, A.I.R. 1963 MP 28
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to the defendant and situated between the defendant’s and plaintiff’s houses damaged the
walls of the plaintiff. The plaintiff had not acquired any right of easement. It was held that the
defendant by building the wall on his land had not in any way violated the plaintiff’s right,
that this was case of damnum sine injuria and that, therefore, no right of action accrued to the
plaintiff.

USING OF TITLE BY SPOUSE AFTER DISSOLUTION OF MARRIAGE:-

In the EARL COWLEY V. COUNTESS COWLEY it was observed that where the marriage of a
commoner with a peer had been dissolved by decree at the instance of the wife, and she
afterwards, on marrying a commoner, continued to use the title that she had acquired by her
first marriage, it was held by therefore, though having no legal right to the user, commit
something legal wrong against her former husband, as to entitle him, in the absence of
malice, to an injunction to retrain her the use of the title

ILLUSTRATIVE CASES ON DAMNUM SINE INJURIA:-

DHAHPHALE V, GURAV10 this was a case where the servant of Hindu temple had a right to
get food offered to the idol, but the person who was under an obligation to offer food, did not
do so. The servant brought a suit against him for the damages. It was held at the defendant
was under no legal obligations to supply food to the temple servant and go his omission to
supply food to the idol might involve a loss to the plaintiffs, it was a case of the damnum sine
injuria, and the plaintiff could not there for maintain the suit.

In one interesting case USHABEN TRIVEDI & ANOTHER V. BHAGYALAXMI CHITRA

MANDIR & OTHERS,11 decided by Gujarat High Court, a shoot was filed against the
producer, writer, director, and distributor of Hindi film, “ Jai Santoshi Maa” on the ground
that certain scenes in the movie would hurt the religious feeling off person believing in the
Hindu religion and mythology. The court held that the court of law have not recognised her to
the religious feelings as a civil actionable wrong. It was therefore held that no legal rights of a
plaintiff were infringed. The court observe that the mere fact that the defendant’s movie
might have shocked the religious sentiments of the plaintiff’s is not itself a matter which
would give rise to cause of action.

ROUSE V. GRAVEL WORKS LTD.,12 (Gravel case) :- the plaintiff owned a field which he
cultivated. The defendants were the owner of adjoining land containing gravel, which day
10
Dhahphale V. Gaurav (1881) 6 Bom. 122.
11
Ushaben Trivedi & Another V. Bhagyalaxmi Chitra Mandir & Others, A.I.R. 1978 Guj. 13
12
Rouse V. Gravel Works Ltd., (1940) 1 K.B. 489
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excavated in the course of the business as gravel merchants. the excavated area, which was
close to the boundary of the plaintiff’s land, became filled with water from rain and
percolation, does forming a pond. The water, by being blown against a strip of the plaintiff’s
land by when, removed some material from the land, deprived the land of lateral support and
prevented the plaintiff from making a profitable use of the strip. in an action by the plaintiff
for damages, it was held at the defendant had a legal right to excavate the gravel on their
land, and accumulation of the water in excavation and its effects upon the plaintiff’s land
were caused, not by the direct action of the defendant, but by the natural agencies of rain,
percolation, and wind over which the defendant had no control and for which they were not
responsible.

INJURIA SINE DAMNUM (Injury without Damage)

This maxim is just the reverse of the maxim discussed above. This maxim refers to injury
without damage. Whenever there is an invasion of legal rights, the person in moon the right is
vested is entitled to bring an action and may recovered magic, although he may have suffered
no actual loss or harm.

Where a tort is actionable, although it has not been the cause of any actual damage it is an
injuria sine damnum that is infringement of legal rights without damage. actual perceptible
damage need not to be proved to; it is sufficient to show the violation of a legal right, in
which case, the law will presume damage. Thus, in a case of assault, battery, false
imprisonment and trespass on the land, the mere wrongful act is actionable without proof of
any actual damage. Every invasion of private property, Be it howsoever minute, is a trespass,
though there may be no actual damage. Similarly, libel a written defamation yes actionable,
even though the person defamed may not actually have suffered even the slightest loss.

The Privy Council has observed “that there may be, where a right is interfered with, injuria
sine damnum sufficient to find an action: but no action can be maintained where there is
neither damnum nor injuria”. A violation of a legal right committed knowingly gives rise to a
cause of action for example interference with an exclusive right to weigh goods and produce,
sold at bazaars13 or to break a cut pot in the temple on a certain day 14, or to carry a procession
through certain public streets of a village on specific occasions, or to the supply of water

13
Bhikhi Ojha v. Harakh Kandu (1889) 9 AWN 89
14
Narayan v. Balkrishna (1872) 9 BHC (ACJ) 413 A person may possess the right to worship an idol at
particular place when it is carried in procession or otherwise.
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from a channel or to receive suffering by setting up a new temple in the name of the same
deity in the same vicinity.15
If there is merely a threat of infringement of legal rights without injury being complete the
person whose rights has been threatened can bring a suit under provisions of the Specific
Relief Act for declaration and injunction.

Refusal to register vote:-

In the leading case of Asbhy v White16 the defendant, a returning officer, wrongfully refused
to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary
election and the candidate for whom the vote was tendered was elected, and no loss was
suffered by the candidate by the rejection of the vote, nevertheless it was held that an action
lay on account of infringement of a legal right of the plaintiff. In this case the returning
officer had acted maliciously. Where, therefore, a returning officer without any malice or any
improper motive, in exercising his judgement, honestly refused to receive the vote at an
election, it was held that no action lay.

In the case of THE MUNICIPAL BOARD OF AGRA V. ASHARFI LAL 17

it was observed that
if a person entitled to be included in the electoral roll is wrongfully omitted from such roll so
as to be deprived of his right to vote at an election, he suffers a legal wrong for which an
action lies.

Banker refusing customer’s cheque

An action will lie against a banker, having sufficient funds in his hands belonging to a
customer, for refusing to honour his cheque although the customer did not thereby sustain
any actual loss or damage.18

In an interesting American case (MORNINGSTAR V. FAFAYETTE HOTEL COMPANY 19) the

plaintiff, who was a guest at the defendant’s hotel, was paid up with the food served at hotel.
So, he purchased some spareribs from outside and gave them hotel chef to be cooked and
brought to his room. This was done, but the spareribs were accompanied a bill $1 Which the
plaintiff refused to pay. The following morning, the plaintiff publicly informed at the
breakfast table that he would not be served. The plaintiff sued for wrongful refusal of service
including damage for humiliation and injury to his feelings. The court held in a favour of the
15
Purshottamdas prabhudas v. Bai Dahi, (1940) 42 Bom LR 358
16
Asbhy v. white, (1703) 2 Ld. Raym. 938.
17
The Municipal Board of Agra v. Asharfi Lal, (1922) 44 All 202
18
Marzetti v. Williams, (1830) 1 B & Ad 415.
19
Morningstar v. Fafayette Hotel Company, 211 N.Y. 465
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plaintiff on the ground that his legal right had been infringed. Cardozo J., in the course of
judgment, observed as follows:

“It is no concern of yours that the controversy at the root of this lawsuit may seem to be
trivial. However, to enforce once right when there are violated is never a legal wrong and
may often be a moral duty.

CONCLUSION

The result of the two maxims20 is that there are more air songs for which the law gives no
legal remedy though they cause great loss or detriment, and, on the other hands, there are
legal wrongs for which the law does give a legal remedy, though there are legal wrongs for
which the law does gives a legal remedy, though there be only violation of private rights,
without actual loss or detriment in the particular case. As already seen, there are torts which
are not actionable per se. In these cases what is violated is a classified right as distinguished
from an absolute right in the sense that actual damage is an ingredient of the tort and the
injury or wrong is complete only when it is accompanied by actual damage. Such damage is
called variously “express loss”, “particular damage”, “damage in fact”, “special or particular
loss”. But “actual damage” is the better expression to be used in a present context. Actual
damage is the gist of action in the following cases:
1)Right to support of land as between adjacent landowners.
2) Menace.
3) seduction.
4) slander(except in four cases)
5)Deceit
6) conspiracy or confederation.
7) waste
8) distress damage feasant
9) negligence
10)nuisance consisting of damages to property, and
11) actions to procure persons to break their contracts with others.

20
Injuria sine Damnum and Damnum sine Injuria
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