S.N.D.T.

Women’s University
Law School
Subject:- Injuria Sine Damnum and
Who cannot sue?
Class :- LLB 1st Year
Name :- Pratiksha Tripal Bhagat
ROLL NO:-4

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 Index
SR. No. Topic Page No
1 Introduction 3

2 Meaning of Injuria Sine 3-4

Damnum
3 The Law of TORTS in India 5-6

4 Case Law 7-12

5 Conclusion 13

6 Who cannot sue? 14

Introduction
7 Seven categories of persons 14-18
cannot sue
8 Case Law 19-21

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 Introduction

Injuria Sine Damnum

Let's see meaning of maxim 'injuria sine damno'
1) Injuria - injury to legal right
2) sine -without
3) damnum - damages, monetary loss.
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
legal 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 has not suffered any loss or damage. In such a case, the suit
is maintainable eve n though the plaintiff suffers no damage.

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(2) INJURIA SINE DAMNUM 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, 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.

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 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.
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 sthe
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 r oots 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 in
dustrialized economy.

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 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.”

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 Case Law
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 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.

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 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 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 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 detune. 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

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 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. T he argument submitted was that the Commons alone had the
power to determine election cases, not the courts.

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.
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

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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 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.
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...

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 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 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.
To allow this action will make public 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. 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

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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 England.

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 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 damnum, 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 perse. 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 damnum. sufficient to found an action: but no action can be
maintained where there is neither damnum nor injuria.

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 Who cannot sue?
Introduction
Every person living in a civilized state has been given certain
rights by the law. Infringement of these rights gives rise to another
right i.e. the right to sue the person who infringed those rights. This
right to sue is known as the capacity of an individual where capacity
indicates the competence of parties to sue and the liability to be sued.
In torts however there are certain persons who can sue but cannot be
sued. Certain who cannot sue but can be sued and yet another group
which can neither sue, nor sued. There are certain persons or bodies
who cannot sue, whist there are others who cannot be sued in tort. In a
tort there is certain person or bodies who cannot sue, whilst there are
others who cannot be sued. These persons are discussed in the detain
below.

There are seven categories of persons cannot

sue, only subject to certain limitations:
1. An Alien enemy
2. Convict
3. Bankrupt
4. Husband and wife
5. Corporation
6. An Infant/Minor
7. A foreign state

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 • An Alien Enemy
An Alien enemy is the person of enemy nationality or residing in
the enemy territory. Such a person doesn’t have the right to sue for
tort.
According to English law, the person cannot maintain the right
of sue unless allowed by order in council.
According to Indian law, the person cannot maintain the right to
sue unless obtains the permission of the central government under
section 83 of the civil procedure code is obtained.
Illustration
If A is a resident/citizen of an enemy country and wants to sue B,
a resident of India, he cannot do that unless he obtains the permission
of the central government.

• Convict
A convict is a person against whom a judgement of death or
imprisonment has been pronounced by the court of law.
According to English law, the person whose sentence is
unexpired does not have the right to sue for any damages to his
property or for recovery. But this concept was removed by criminal
justice act, 1948.
In India, until 1921, in the offence of forfeiture of the property,
the offender is disabled from right to sue for any injury. But today, a
convict in India may sue for torts, both to his property and his body.
Illustration
Situation 1: Before 1921, if A is a convict and want to sue B for
injury regarding the property, in that situation he cannot sue the
person in the offence of forfeiture of the property.

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 Situation 2: After the 1921 changes in IPC, if A is a convict and
want to sue B for injury regarding property or body, he gets the right
to sue for both injury to property as well as to the body.

• Bankrupt
A bankrupt is also under the disability to sue for the act against
his property.
According to the Indian law, All his property is vested in
possession of bank or official assignee and in English law all property
is vested to the trustee. All the offences against the property, the right
to action is vested with the trustee or the assignee. But in the case of
personal wrong, the person has a right to sue.
In the situation, where a tort causes injury to both the person and
the property, so the right of action will split between the two.
Illustration
Situation 1: If A is a bankrupt and his property is vested in the
possession of official assignee i.e. C by the bank. If B trespasses his
property, the right of action is vested on official assignee i.e. C.
Situation 2: But if B trespasses A’s body then in that situation
the right of action is vested on A.

• Husband and wife

Back in times, in English law, the husband and wife cannot sue.
By the virtue of the married women’s property act, 1882, a wife can
sue her husband. But the husband cannot sue his wife. A wife could
not sue her husband for the antenuptial tort or personal wrong.
The law reform (husband and wife) act 1962 made a drastic
change and allowed both to sue.
In India, both the spouses have the right to sue in any offences.

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 • Corporation
A corporation does not have right to sue for the personal injury
as because of its nature it is clear, that a corporation cannot be injured
personally but a corporation can sue for the tort affecting its property.
The qualification is:
The tort must not be impossible in nature.
In the case of defamation, the corporation can sue the other
person if, it can prove that the injury has the tendency to cause actual
damages.
A corporation may sue for a libel or any other wrong affecting its
property or business.
In Manchester v. Williams
In this case, it was held that a corporation has a right to sue, not
only for the property but also for its personal reputation.

• An Infant/Minor
A minor can sue for the tort committed against him, subject to
that by his next friend or guardian. But he cannot maintain a remedy
for the injury sustained when he was in his mother’s womb.
In Walker v. Great Northern Railways
In this case, a pregnant woman injured due to a train accident, as
a result of which her child was born deformed. The Court held that the
minor cannot maintain a remedy for the injury sustained when he was
in his mother womb.
But in a case having similar facts, the supreme court of Canada
provided the remedy to the infant.

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 CASE LAW.
(1890) 28 LR IR 69
A women was with child, was injured in a railway accident, and
the child when born was found to be deformed. The infant claimed
1,030 as damages from the railway company.

• A foreign State
In England, a foreign state cannot be sued in any court unless the
action is recognised by her majesty.
In India under section 84 of the civil procedure code, a foreign
state can have the right to sue provided that such state has been
recognised by the central government.

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 CASE LAW
International G. N. Ry. Co.
v.
Walker
December 17, 1913.
Appeal from District Court, Bexar County; R. B. Minor, Judge.
Action by Ganahl Walker against the International and Great
Northern Railway Company. From a judgment for plaintiff, defendant
appeals. Affirmed.
Wilson, Dabney King, of Houston, and Cobbs, Eskridge Cobbs
and Texas Schramm, all of San Antonio, for appellant. Reagan
Houston, Perry J. Lewis, and H. C. Carter, all of San Antonio, for
appellee.
This suit was instituted by appellee to recover damages alleged
to have been sustained by him from personal injuries inflicted through
the negligence of appellant. It was alleged that appellee was crossing
appellant's railroad, in an automobile, in San Antonio, at a public
crossing on Woodlawn avenue, a much used highway, and that
appellant failed to give any signals of the approach of the train, and
negligently ran into the automobile and injured appellee. Appellant
charged contributory negligence upon the part of appellee. A trial by
jury resulted in a verdict and judgment in favor of appellee for $5,000.
There are but three assignments of error, all of them assailing the
sufficiency of the evidence to sustain any verdict in favor of appellee,
and consequently necessitates a review of the whole testimony, unless
appellant has lost the right, as insisted by appellee, to have the
testimony reviewed by this court, by reason of having requested
charges grouping the facts as to contributory negligence. We do not
think that the rule of invited error can be applied to a case like this,

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where the court had submitted the question of contributory negligence
in the general charge, and appellant merely followed it up with a
special charge on the same subject. How appellant, who insisted in the
lower court that appellee should not recover, because of his
contributory negligence, is precluded from raising that question in this
court on account of asking a charge on the subject on the trial below
does not appear to this court. That seems to be the theory advanced in
Railway v. Smith, 155 S.W. 361, but it will not be applied in this case.
The doctrine of invited error has always been upheld by this court, but
none of the opinions of this court cited by appellee goes to the extent
of the case above cited. If appellant had contended in the lower court
that there was no evidence of contributory negligence, and then had
asked a charge embodying that theory, it might be said that the right to
raise that question in this court had been lost, but appellant insisted in
the trial court that there was contributory negligence on the part of
appellee, and can so insist in this court, no matter how many special
charges it requested.
The evidence of appellee shows that he was driving an
automobile, occupied by him and Mrs. Mamie Turley, eastward on
Woodlawn avenue, San Antonio, and as appellee endeavored to cross
the track in front of a swiftly moving train, the automobile was struck
by the locomotive and injured. It was about 11 a. m. that the accident
occurred. Appellee testified that he did not see nor hear the train until
he was 10 or 12 feet from the track; that the bushes were so thick near
the track that they obstructed his vision so that he could not see the
train until sharp, rapid blasts of the whistle were given, when it was so
close that he could not stop his automobile. The train was, at the time
the blasts were given, 50 or 75 feet from the crossing. No signals had
been given before those mentioned. The train was going south; that is,

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going into the city of San Antonio. The train was moving rapidly.
After trying to stop his car appellee put on speed in an attempt to cross
over, finding that he could not stop before reaching the crossing. He
testified: "I say when I first saw the train it was 50 or 75 feet away
from me, coming towards me very rapidly, and that was when I was
about 10 or 12 feet distant from the track, and I chose the course that I
thought was safest; if I had continued to try to stop, I knew it was a
certainty of getting hit, because I would have been right in the middle
of the track, and I was afraid that my car would stop right on the track,
and I thought the safer course in the emergency was to try to get out of
the way." Appellee did not stop, look, or listen as he approached the
crossing. Appellant seems to have been exceeding the rate of speed
prescribed by the ordinances of the city of San Antonio, and if the
testimony of appellee is to be credited, the statutory signals were not
given by appellant on approaching the street crossing.
The jury has found that appellant was guilty of negligence, and
that appellee was not guilty of contributory negligence. Whatever may
be the rule in the states from which the numerous cases cited by
appellant have been selected, it is not the rule in Texas that it is
negligence per se for a person not to stop, look, and listen before
going upon a railroad crossing. A failure to use such precautions is a
matter of fact to be considered by a jury. The overwhelming weight of
authority in Texas is to the effect that, in the absence of a statute, the
failure of a person approaching a railroad crossing to stop, look, and
listen does not render him guilty of contributory negligence as a
matter of law. The authorities on the subject are collated in volume 5,
Encyclopedic Dig. Tex. Rep., Title, Crossings, pp. 731, 732.
The judgment is affirmed.

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