Liability: theory, conditions, the wrongful act, damnum sine injuria and causation

1. Meaning of liability

Salmond: liability or responsibility is “the bond of necessity that exists between the wrongdoer and the remedy of the wrong.” A person is liable when he is bound to suffer the remedy the law provides. Austin used the term for the condition of a person who has broken a duty and is exposed to a sanction.

2. Kinds of liability

• Civil and criminal. Civil liability is enforced by civil proceedings and ends in a remedy for the person wronged; criminal liability by criminal proceedings ending in punishment.
• Remedial and penal. Remedial liability exists to enforce the right (specific performance, restitution). Penal liability exists to punish (fines, imprisonment, and penal redress in civil law).

Salmond explains that remedial liability does not normally need a mental element: the law enforces a duty whether or not the defendant was at fault. Penal liability does, because punishment is justified only for conduct the person could have avoided.

3. The general conditions of penal liability

Salmond’s formula: “The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, actus non facit reum nisi mens sit rea: the act alone does not amount to guilt; it must be accompanied by a guilty mind.” Two conditions follow.

• The act (the material condition). There must be a wrongful act or omission.
• The mens rea (the formal condition). The act must be done intentionally or negligently. Those are the two forms of mens rea; strict liability is the exception, where neither is required.

4. The wrongful act

An act in law has three parts (Salmond):

• its origin in some mental or bodily activity or passivity of the doer, the willed muscular movement;
• its circumstances, the facts in which it is done (for example, that the property belonged to another, that the woman did not consent);
• its consequences, the results it produces (the death, the loss).

Acts are positive (doing) or negative (omission); internal (of the mind) or external (of the body); intentional or unintentional. The law generally punishes only external acts; a mere intention, without any act towards it, is not punishable. Omissions create liability only where there is a duty to act. Section 2(25) of the Bharatiya Nyaya Sanhita, 2023 treats a series of omissions as well as a single omission as an omission, and section 2(1) treats a series of acts as an act.

5. Damnum sine injuria and injuria sine damno

A legal wrong (injuria) is the violation of a legal right. Actual damage (damnum) is loss in money, comfort or health. The two do not always go together.

• Damnum sine injuria: damage without the violation of a legal right. No action lies, however great the loss, because no right has been infringed.
  • Gloucester Grammar School case (1410): a schoolmaster set up a rival school next to the plaintiffs’ and drew away their pupils, forcing them to cut their fees. No action lay; competition is lawful.
  • Mogul Steamship Co. v. McGregor, Gow and Co. (House of Lords, 1892): shipowners combined to cut freight rates and drive a rival out of the tea trade. Damage, but no legal wrong.
  • Bradford Corporation v. Pickles (House of Lords, 1895): a landowner drained water percolating under his land to force the Corporation to buy him out. He had a right to do so, and his malicious motive did not make it a wrong.
• Injuria sine damno: violation of a legal right without actual damage. An action lies, because the infringement of the right is itself the wrong.
  • Ashby v. White (1703): a returning officer wrongfully refused the plaintiff’s vote. His candidate won anyway, so he suffered no loss, but he was entitled to damages because his right to vote was violated. Holt C.J.: “every injury imports a damage.”
  • Torts actionable per se, such as trespass and libel, are instances.

6. Causation

Liability for a consequence requires that the act caused it. Two questions arise.

• Causation in fact: the “but for” test. Would the harm have happened but for the act? In Barnett v. Chelsea and Kensington Hospital Management Committee (1969) a doctor negligently failed to examine a poisoned man, who would have died anyway; the hospital was not liable.
• Causation in law (remoteness). The consequence must not be too remote. Under Re Polemis (1921) a person was liable for all direct consequences; under The Wagon Mound (Privy Council, 1961) only for consequences of a kind reasonably foreseeable.
• Novus actus interveniens: an independent act of a third person, or of the victim, or an extraordinary natural event, may break the chain of causation, so that the original actor is not liable for what follows.
• In criminal law a person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates his death, is deemed to have caused the death (Explanation 1 to section 100 of the Bharatiya Nyaya Sanhita, 2023, formerly section 299 IPC).

7. Theories of liability

Two approaches run through the subject. On the fault theory, liability follows from blameworthy conduct, intention or negligence. On the no-fault (risk) theory, liability follows from the creation of a risk or from the enjoyment of a benefit, irrespective of fault: strict, absolute and vicarious liability. Modern law uses both. Criminal law mainly follows fault; tort law increasingly follows risk, as in the absolute liability of hazardous industries.

How this is examined

As a 10-mark essay: “Explain the theory of liability” (February 2025, Q.5(a)). As a short note: “Damnum sine injuria” (February 2025, Q.5(b)). For the essay give Salmond’s definition, the kinds, the two conditions, the analysis of an act, a paragraph on causation, and close with the fault and no-fault theories, leading into mens rea and strict liability. For the short note, give the maxim, the three English cases, and the contrast with Ashby v. White.