Damnum Sine Injuria

The Indian case

Facts. Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, decided on 12 February 1976. The plaintiffs sued in the City Civil Court at Ahmedabad for a permanent injunction restraining the exhibition of the film Jai Santoshi Maa, complaining that it hurt the religious feelings of a section of Hindus, and applied for a temporary injunction. The trial judge refused it, holding that no civil right of the plaintiffs was involved.

Held. The appeal was dismissed. The High Court held that hurt to religious feelings has never been recognised by the courts as a civil actionable wrong; that mere annoyance to feelings, without pecuniary or tangible loss, is not a ground for an injunction; and that a plaintiff must show a substantial injury which the court can recognise. No legal right having been infringed, the case was one of damnum sine injuria.

Why it matters here. It shows the maxim working on facts an Indian student will recognise, and it shows that even a strongly felt harm is not legal injury.

The situations in which the maxim applies

Lawful competition. A trader who loses custom to a rival has no action. This is the Gloucester Grammar School rule, and it is the reason competition law, not tort, regulates markets.

The exercise of a legal right on one's own property. A landowner who builds, drains or digs on his own land may cause serious loss to a neighbour without liability, unless what he does amounts to a nuisance or infringes an easement.

Acts done under statutory authority. Where the legislature authorises an act, loss caused by doing it carefully is not actionable. Chapter [General Defences II] takes this further.

Loss caused by an act the law permits for the public good. A lawful strike, a lawful procession, or the publication of a true statement may each cause heavy loss without giving an action.

Hurt to feelings, religious or otherwise. Ushaben is the Indian authority.

A worked example

Farida runs the only bus service between two villages. Three things happen.

One. The State Transport Undertaking starts a rival service under a permit lawfully granted. Farida's takings halve. This is damnum sine injuria: she has a licence to run buses, not a right that others shall not.

Two. A rival operator spreads a false story that Farida's brakes fail. Her takings halve again. This is not damnum sine injuria: her reputation is a protected interest and the false statement infringes it, so an action lies in defamation, and possibly in injurious falsehood.

Three. The State builds a new road so that the village is served directly and nobody needs Farida's bus at all. Her business closes. This is damnum sine injuria again, and on a large scale: the loss is total and no right of hers has been touched.

The way to answer any problem on this maxim is to ignore the size of the loss entirely and ask one question: which legal right of the plaintiff was infringed? If you cannot name it, the answer is damnum sine injuria.

Distinctions that carry marks

What it does NOT mean

It does not mean the plaintiff suffered nothing. He may have lost everything. The maxim is about rights, not about amounts.

It does not mean the defendant behaved well. He may have acted from spite. Motive is generally irrelevant, as chapter [The Mental Element in Tort] explains, so a lawful act done from a bad motive is still lawful.

It does not mean the loss can never be recovered under some other law. A competitor's conduct may be an offence, or may attract a statutory regulator, or may breach a contract. The maxim says only that the law of torts gives nothing.

It does not mean feelings are never protected. Defamation protects reputation and nuisance protects the comfortable enjoyment of land. What Ushaben decides is that hurt to religious feelings, standing alone, is not a legal injury.

Quick revision

1. Damnum is loss; injuria is the violation of a legal right.
2. Damnum sine injuria is loss without legal injury and gives no action, however large the loss.
3. Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23: a rival school; competition is no ground of action.
4. Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13: hurt to religious feelings is not a civil actionable wrong.
5. Situations: lawful competition, use of one's own property, statutory authority, lawful acts for the public good, hurt feelings.
6. The test in a problem: name the legal right infringed. If you cannot, the maxim applies.
7. It is the practical limit on any general principle that all harm is actionable.

Test yourself

1. Explain the maxim damnum sine injuria with decided cases. Damnum means loss and injuria means the violation of a legal right, so the maxim describes loss unaccompanied by any infringement of a right. Such loss gives no cause of action, however large it may be, because the law of torts protects rights rather than wallets. In the Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23, a schoolmaster set up a rival school next door, the plaintiff's pupils left and his fees fell sharply, and it was held that no action lay either for damages or for an injunction, because competition is no ground of action whatever damage it causes provided no legal right is infringed. In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, an injunction to restrain the exhibition of a film said to hurt religious feelings was refused, the High Court holding that hurt to religious feelings is not a civil actionable wrong and that mere annoyance to feelings without tangible loss cannot found an injunction.

2. "The extent of the loss is irrelevant to liability in tort." Do you agree? Yes, so far as the existence of liability is concerned, and this maxim is the proof. A trader ruined by lawful competition recovers nothing, while a man wrongly turned away from a polling booth, who loses nothing at all, recovers. Liability depends on whether a legal right was infringed, not on how much was lost. The extent of the loss becomes relevant only once liability is established, when it governs the amount of damages, and even then some torts are actionable without proof of damage at all.

3. Distinguish damnum sine injuria from injuria sine damno. Damnum sine injuria is loss without the violation of a legal right, and gives no action; the Gloucester Grammar School case and Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, are the illustrations. Injuria sine damno is the violation of a legal right without loss, and does give an action, because in torts actionable per se the law presumes damage; Ashby v. White, decided in 1703, and Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, are the illustrations. In the first there is harm but no wrong; in the second there is a wrong but no harm. The damages in the second are frequently nominal, though in Bhim Singh the Supreme Court awarded Rs. 50,000.

4. A new supermarket opens opposite an old grocery shop and the shop closes within a year. Advise the shopkeeper. He has no remedy in tort. His loss is real and complete, but no legal right of his has been infringed: he has a right to trade, not a right that others shall not trade near him. The case is governed by the Gloucester Grammar School rule that competition is no ground of action whatever damage it may cause. The position would change if the supermarket had done something unlawful, for example spreading false statements about his goods, which would be defamation or injurious falsehood, or committing a nuisance that interfered with the enjoyment of his premises. Absent something of that kind, the case is damnum sine injuria.