You are on page 1of 15
CHANAKYA NATIONAL LAW UNIVERSITY,patna INJURIA SINE DAMNO - A PROJECT SUBJECT: LAW OF TORTS SUBMITTED TO:- MS. SHUSHMITA SINGH FACULTY of LAW OF TORTS Submitted By: Ankit kumar ROLL NO - 2007 B.B.A. LLB, 1ST SEMESTER TABLE OF CONTENT Page |2 sl. no. NAME OF CHAPTER PAGE NO. 1. INTRODUCTION 4  AIMS AND OBJECTIVE  HYPOTHESIS 2. RESEARCH METHODOLOGY 4  METHODS OF DATA COLLECTION  SOURCE OF DATA 3. INTRODUCTION: INJURIA SINE DAMNO 5-6  DEFINITION  BACKGROUND  PRINCIPLE 4.  LAW OF TORTS IN INDIA 7-8 5. BHIM SINGH vs. STATE OF J&K 8-9  FACTS  JUDGEMENT 6. ASHBY V WHITE 10-13  FACTS  JUDGEMENT 7. CONCLUSION 14 BIBLIOGRAPHY 15 ACKNOWLEDGEMENT Page |3 I would like to thank my faculty Ms. Shushmita Singh, whose assignment of such a relevant and current topic made me work towards knowing the subject with a greater interest and enthusiasm and moreover he guided me throughout the project. I owe the present accomplishment of my project to my friends, who helped me immensely with sources of research materials throughout the project and without whom I couldn’t have completed it in the present way. I would also like to extend my gratitude to my parents and all those unseen hands who helped me out at every stage of my project. AIM AND OBJECTIVE Page |4 i. To discuss (in brief) the concept of vicarious liability and its principle. ii. To study the subject matter of Test of Control and its position in India. iii. Discuss and analyze various case law related to test of control for establishing vicarious liability HYPOTHESIS  Violation of a legal right without causing any harm, loss or damage to the plaintiff.  Torts actionable without the proof of any damage  Torts which require proof for initiating action RESEARCH METHODOLOGY This project is based upon doctrinal method of research. This project has been done after a thorough research based upon intrinsic and extrinsic aspects of the project. Source of data: Secondary Sources a) Books b) Newspaper c) Articles e) Website Mode of Citation:  The researchers have followed a uniform mode of citation throughout the course of this project. Page |5 INTRODUCTION: INJURIA SINE DAMNO In common law, a tort is a civil wrong for which the law provides a remedy. The origins of the modern law of torts lie in the old remedies of trespass. The term itself comes from French law and means, literally, a „wrong‟ (avior trot = “to be wrong” or to have wronged [somebody]”). It is a crime for which an injured person can bring actions in court to recover damages against those who committed them. The law of torts is of great importance because it is designed to protect individuals and organisations, such as educational institutions, from civil wrongs other than breach of contract.1 INJURIA SINE DAMNUM: - if the plaintiff suffers injury to his l egal right, he will have a cause of action to sue the defendant even though he has not suffered any loss or damage. The term 'injuria' means infringement or violation of a legal right. The term 'sine' means without or in the absence of. The term 'damnum' means damage physical, mental or otherwise. Thus, the above phrase ' Injuria sine damno' means '' infringement of legal rig ht without damage''. In other words, plaintiff's legal right is affected, but he ha s not suffered any loss or damage. In such a case, the suit is maintainable eve n though the plaintiff suffers no damage.2 INJURIA SINE DAMNO means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports damage when a man is hindered of his right. Every person has an absolute right to property to the immunity of his person and to his liberty and an infringement of this right is actionable per se. Actual perceptible damage is not therefore essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc, the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, 1 http://scholarly-journals.com/sjba/archive/2012/January/pdf/Nakpodia.pdf 2 LAW OF TORTS & CONSUMER PROTECTION by Mrs. Annu Mehra.docX Page |6 returning officers in parliamentary election. The candidate from whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.3 The Law of TORTS in India Under the Hindu Law and The Muslim Law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India. 3 http://lex-warrier.in/2015/04/injuria-sine-damno/ Page |7 The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian Society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”4 Bhim Singh vs. State of J&K FACTS: Bhim Singh, a Member of the Legislative Assembly of Jammu & Kashmir, incurred the wrath of the powers that be. They were bent upon preventing him from attending the session of the Legislative Assembly of Jammu & Kashmir, which was to meet on 11th September, 1985. That appears to be the only inference that we can draw from the circumstances of the case to which we shall now refer. On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly, Shri Bhim Singh was suspended from the Assembly. He questioned the 4 http://www.legalserviceindia.com/article/l175-Torts-in-India.html Page |8 suspension in the High Court of Jammu & Kashmir. The order of suspension was stayed by the High Court on 9th September, 1985. On the intervening night of 9th- 10th September, 1985, he was proceeding from Jammu to Srinagar. En route, at about 3.00 AM (on 10th), he was arrested at a place called Qazi Kund about 70 kms. from Srinagar. He was taken away by the police. As it was not known where he had been taken away and as the efforts to trace him proved futile, his wife Smt. Jayamala, acting on his behalf, filed the present application for the issue of a writ to direct the respondents to produce Shri Bhim Singh before the court, to declare his detention illegal and to set him at liberty. She impleaded the State of Jammu & Kashmir through the Chief Secretary as the first respondent, the Chief Minister, the Deputy Chief Minister and the Inspector General of Police, Jammu & Kashmir as respondents 2, 3 and 4.5 Judgement: MR . E.C. Agarwala, learned Counsel for the State of Jammu and Kashmir has placed on record a copy of the teleprinter message from the concerned authority dated August 30, 1984 informing him that Mr. Bhim Singh the detenu, whose detention has been challenged in this Writ Petition under Article 32 of the Constitution has been released on August 24, 1984. This teleprinter message is followed by a letter confirming the same. Mr. E.C. Agarwal, learned Counsel has authenticated the letter as well as the teleprinter message, and placed them on record. (2.) MRS . Jayamala, learned Counsel for the petitioner and a member of the working committee of J. and K. Panthars Party has filed this writ petition for writ 5 https://indiankanoon.org/doc/1227505/ Page |9 of Habeas Corpus questioning the validity of the detention of Bhim Singh, who is a sitting Member of the Legislative Assembly of Jammu and Kashmir State. When the letter and teleprinter message were shown to Mrs. Jayamala, she said that Mr. Bhim Singh has not been released because she had contacted all the possible 6 sources enquiring about the release of the petitioner, but he could not be contacted and therefore there is reason to believe that the statement made by Mr. Agarwal is not correct. We are not persuaded to accept this submission because it is difficult to believe that the State would make through its learned Counsel a wholly false statement in respect of a detenu. The petitioner is at liberty to take other steps if the petitioner is not released as stated by the learned Counsel. (3.) THIS petition has become infructuous and stands disposed of accordingly Ashby vs. White FACTS: Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the House of Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the House of Commons. Sir Thomas Powys defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts.7 6 http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=004891632000 7 https://sites.google.com/site/democracyconnect7/democracy-katha-eng-12-4-2012 P a g e | 10 JUDGEMENT: Lord Holt CJ was dissenting from the judgment in the Court of King's Bench, but his dissent was upheld by the House of Lords by a vote of fifty to sixteen. His judgment reads as follows.8 So in the case of Mellor v Spateman, 1 Saund. 343, where the Corporation of Derby claim common by prescription, and though the inheritance of the common be in the body politic, yet the particular members enjoy the fruit and benefit of it, and put in their own cattle to feed on the common, and not the cattle belonging to the corporation; but that is not indeed our case. But from hence it appears that every man, that is to give his vote on the election of members to serve in Parliament, has a several and particular right in his private capacity, as a citizen or burgess. And surely it cannot be said, that this is so inconsiderable a right, as to apply that maxim to it, de minimis non curat lex. A right that a man has to give his vote at the election of a person to represent him in Parliament, there to concur to the making of laws, which are to bind his liberty and property, is a most transcendent thing, and of an high nature, and the law takes notice of it as such in divers statutes: as in the statute of 34 & 35 H. 8, c. 13, intitled An Act for Making of Knights and Burgesses within the County and City 8 (1703) 92 ER 126, 137-139 and (1703) 2 Ld Raym 938, 953-958 P a g e | 11 of Chester; where in the preamble it is said, that whereas the said County Palatine of Chester is and hath been always hitherto exempt, excluded, and separated out, and from the King's Court, by reason whereof the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, as well in their lands, goods, and bodies, as in the good, civil, and politic governance, and maintenance of the commonwealth of their said county, &c. So that the opinion of the Parliament is, that the want of this privilege occasions great loss and damage. And the same farther appears from the 25 Car. 2, c. 9, an Act to enable the County Palatine of Durham to send knights and burgesses to serve in Parliament, which recites, whereas the inhabitants of the County Palatine of Durham have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the High Court of Parliament, &c. The right of voting at the election of burgesses is a thing of the highest importance, and so great a privilege, that it is a great injury to deprive the plaintiff of it. These reasons have satisfied me as to the first point.9 If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal... And I am of opinion, that this action on the case is a proper action. My brother Powell indeed thinks, that an action upon the case is not maintainable, because here is no hurt or damage to the plaintiff; but surely 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 thereby 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 cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there. And in these cases the action is brought vi et armis. But for invasion of another's franchise, trespass vi et armis does not lie, but an action of trespass on the case; as where a man has retorna brevium, he shall have an action against any one who enters and invades his franchise, though he lose nothing by it. So here in the principal case, the plaintiff 9 https://www.quimbee.com/cases/ashby-v-white P a g e | 12 is obstructed of his right, and shall therefore have his action. And it is no objection to say, that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompence...10 To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation...11 Let us consider wherein the law consists, and we shall find it to be, not in particular instances and precedents; but on the reason of the law, and ubi eadem ratio, ubi idem jus. This privilege of voting does not differ from any other franchise whatsoever. If the House of Commons do determine this matter, it is not that they have an original right, but as incident to elections. But we do not deny them their right of examining elections, but we must not be frighted when a matter of property comes before us, by saying it belongs to the Parliament; we must exert the Queen's jurisdiction. My opinion is founded on the law of England12 10 http://jailhouselawyersblog.blogspot.in/2010/06/ashby-v-white-1703.html 11 http://www.ckadvocates.co.ke/2013/04/ashby-v-white-this-question-presents-among-the-first-issues-grounded- in-civil-rights-the-issue-of-this-case-is-whether-one-party-may-recover-damages-when-one-of-his-civil-rights-is- hindered-by-t/ 12 http://lawlegal.eu/ashby-v-white/ P a g e | 13 CONCLUSION To conclude, law of tort is a branch of law which resembles most of the other branches in certain aspects, but is essentially different from them in other respects. Although there are differences in opinion among the different jurists regarding the liability in torts, the law has been developed and has made roots in the legal showground. There are defined elements and conditions of liability in tort law. This brough of law enables the citizens of a state to claim redress for the minor or major damage cause to them. Thus the law has gained much confidence among the laymen. In cases of injuria sine damno, i.e., the infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In India, the same principles have been followed. The Privy Council has observed that “there may be, where a right is interfered with, injuria sine damno sufficient to found an action: but no action can be maintained where there is neither damnum nor injuria. P a g e | 14 Bibliography BOOKS REFERRED  LAW OF TORTS by R.K. Bangia  Michael A. Jones, Textbook on Torts  THE LAW OF TORTS by Ramaswamy Iyer  THE LAW OF TORTS by Mrs. Annu Mehra  THE LAW OF TORTS by Ratanlal and Dhirajlal WEBSITES REFERRED  www.scholarlyjournals.com  http://lex-warrier.in/2015/04/injuria-sine-damno/  http://www.jurawelt.com/sunrise/media/mediafiles/14236/law-of-torts.pdf  http://jailhouselawyersblog.blogspot.in/2010/06/ashby-v-white-1703.html  http://www.ckadvocates.co.ke/2013/04/ashby-v-white-this-question-presents- among-the-first-issues-grounded-in-civil-rights-the-issue-of-this-case-is- whether-one-party-may-recover-damages-when-one-of-his-civil-rights-is- hindered-by-t/ P a g e | 15  http://lawlegal.eu/ashby-v-white/  https://www.quimbee.com/cases/ashby-v-white  http://www.legalserviceindia.com/article/l265-M.C.-Mehta-v.-Union-of- India.html  http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=004891632000