Law of Torts
Damnum Sine Injuria: Loss Suffered Without the Violation of a Legal Right, and Why No Action Lies
Damnum sine injuria is loss without the violation of a legal right, and it is not actionable at all. The law of torts protects rights, not interests, and a plaintiff who proves heavy loss but can point to no right of his that was violated has no cause of action however sympathetic his position. The reason is that a great deal of lawful activity causes loss to other people: competition takes away custom, building on your own land takes away a neighbour's light or view, and drawing water beneath your land takes away his supply. Nobody has a legal right to the continuance of his trade or his profits, and the defendant's motive in exercising his own rights makes no difference.
The categories, why no action lies, the cases, and where motive does and does not matter
1. The Meaning
- Damnum is loss or damage in money, comfort, health, custom or the like.
- Injuria is the infringement of a legal right.
- Damnum sine injuria is therefore actual loss without any legal right of the plaintiff having been violated.
- The rule is that no action lies. The first element of a tort, a wrongful act in the sense of the breach of a legal duty, is simply absent.
- It is not an exception to ubi jus ibi remedium. There is no jus at all, so the maxim never starts to operate.
2. The Commonest Categories
1. Lawful competition, however ruinous to the plaintiff. Nobody has a right to the continuance of his custom.
2. The lawful use of one's own property, including building on it, extracting water beneath it, and obstructing a neighbour's prospect or view.
3. The lawful exercise of a statutory power or a legal right, such as demolishing an unauthorised structure, or refusing to contract with a particular person.
4. The exercise of a right of free expression within its lawful limits, including fair comment and truthful criticism.
5. Damage caused by an act of State, which is not justiciable in the municipal courts.
6. Damage that the law regards as too remote, or of a kind for which it gives no remedy, such as pure economic loss in many situations.
7. Damage caused in the course of a lawful trade combination, provided the combination does not have the injury of the plaintiff as its predominant purpose.
3. The Leading Case
📖 The Gloucester Grammar School case (1410) YB 11 Hen IV 47 Facts The plaintiff was a schoolmaster. The defendant, also a schoolmaster, set up a rival school in the same town and attracted the plaintiff's pupils away by charging lower fees. The plaintiff's fees fell from forty pence a quarter to twelve. Held No action lay. The plaintiff had suffered real and substantial loss, but the defendant had violated no legal right of his. Ratio Competition, however damaging, is not actionable. A person has no legal right to the continuance of his custom, his pupils or his profits, so loss caused by a rival lawfully competing is damnum without injuria. |
4. The Other Cases Regularly Cited
📖 Mogul Steamship Co. v. McGregor, Gow and Co. [1892] AC 25 Facts A number of shipowners combined to secure the China tea carrying trade for themselves. They offered special rebates to shippers who dealt exclusively with them, and cut freight rates, with the object of driving the plaintiff company off the route. The plaintiff suffered heavy loss. Held No action lay. The combination was lawful. Ratio Acts done by traders in the lawful pursuit of their own business interests, however injurious to a rival, are not actionable, provided no unlawful means are used. The object of securing trade for oneself is legitimate even though it necessarily involves taking that trade from somebody else. |
📖 Chasemore v. Richards (1859) 7 HLC 349 Facts The plaintiff had for sixty years worked a mill on the bank of a river, fed by underground percolating water. The defendants, a local board, sank a well on their own land about a quarter of a mile away to supply the town, and drew off the percolating water that had fed the river. The mill lost its supply. Held No action lay. Ratio There is no right of property in water percolating in undefined channels beneath the soil. A landowner may abstract it, and the resulting loss to a neighbour is damnum sine injuria. |
📖 Town Area Committee v. Prabhu Dayal, AIR 1975 All 132 Facts The plaintiff constructed sixteen shops without the sanction required by law and without giving the statutory notice. The Town Area Committee demolished the construction. The plaintiff sued for damages, alleging that the officials had acted maliciously. Held The suit failed. The plaintiff had suffered loss, but no legal right of his had been violated, the construction being unauthorised in the first place. Ratio Where a statutory authority does what the law empowers it to do, the resulting loss is damnum sine injuria, and the malice of the officers does not convert a lawful act into an actionable wrong. |
5. Motive Does Not Change the Answer
📖 Bradford Corporation v. Pickles [1895] AC 587 Facts The Corporation drew its water supply from springs fed by percolating water passing through the defendant's land. The defendant sank a shaft on his own land, which diverted and discoloured the water reaching the Corporation. It was admitted that his object was to compel the Corporation to buy his land at his price. Held No action lay, and no injunction was granted. Ratio An act which is lawful does not become unlawful merely because the motive with which it is done is improper. The defendant was doing no more than he was entitled to do with his own land, and the law does not enquire into the motive of a man exercising his own right. |
📖 Allen v. Flood [1898] AC 1 Facts The defendant, a trade union official, told an employer that his members would stop work unless the plaintiffs, who were shipwrights, were dismissed. The employer, being free to do so, declined to re engage them. The defendant was alleged to have acted out of spite arising from earlier work the plaintiffs had done. Held No action lay. Ratio An act otherwise lawful, though harmful, does not become actionable by reason of the motive with which it was done. The defendant used no unlawful means and induced no breach of contract, and motive alone cannot supply the missing element of illegality. |
6. Where Motive Does Matter
The situation | Why motive matters there |
Malicious prosecution | Malice is an ingredient of the tort, alongside the absence of reasonable and probable cause |
Malicious civil proceedings and injurious falsehood | Malice is again in the definition of the wrong |
Qualified privilege in defamation | The defence is lost if the defendant was actuated by malice |
Fair comment | The defence is likewise defeated by malice |
Conspiracy to injure | A combination whose predominant purpose is to injure may be actionable though each act taken alone is lawful |
Nuisance | Malicious conduct may make an otherwise reasonable use of land unreasonable |
- The exceptions do not undermine the rule. In each of them the law has made malice part of the definition of the wrong, or of the defence, so it is not a case of motive converting a lawful act into an unlawful one.
- The distinction between Allen v. Flood and the conspiracy cases is that a combination may do what an individual may not, because the law treats concerted action aimed at injuring a person as a different thing from individual competition.
7. The Test to Apply
⚠ Ask what the defendant was entitled to do, not how much the plaintiff lost The question is never the size of the plaintiff's loss. It is whether the defendant was exercising a right of his own, or doing something the law forbids. Competing for trade, building on your own land, abstracting percolating water beneath it, demolishing an unauthorised structure under statutory power, and declining to deal with a particular person are all exercises of a right. Where the defendant was exercising a right, the loss is damnum sine injuria and the enquiry stops. Where he was not, the plaintiff must still show that the right the defendant violated was his right, and that brings back the second element of a tort. Only if both are answered in the plaintiff's favour does the question of damages arise at all. |
8. The Position Stated Shortly
1. Damnum sine injuria is loss suffered without the violation of any legal right, and no action lies.
2. The law of torts protects rights, not interests, and nobody has a legal right to the continuance of his custom, trade or profits.
3. The commonest categories are lawful competition, the lawful use of one's own property, the lawful exercise of a statutory power, and acts of State.
4. The Gloucester Grammar School case is the leading authority: a rival schoolmaster who undercut the plaintiff caused loss but violated no right.
5. Mogul Steamship holds that a trade combination pursuing its own interests by lawful means is not actionable however injurious.
6. Chasemore v. Richards holds that there is no right of property in percolating water in undefined channels.
7. Town Area Committee v. Prabhu Dayal applies the principle to the lawful demolition of an unauthorised construction.
8. Bradford Corporation v. Pickles and Allen v. Flood establish that an act lawful in itself does not become unlawful by reason of a bad motive.
9. Motive matters only where the law has made malice part of the definition of the tort, or where it defeats a defence such as qualified privilege, and in conspiracy to injure.
10. The opposite case is injuria sine damno, where a right is violated without loss, and there the action does lie.