Ubi jus ibi remedium and legal damage - Law of Torts

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1. Ubi jus ibi remedium
2. Injuria sine damno: legal injury without actual loss
3. Damnum sine injuria: actual loss without legal injury
4. Legal damage as an essential of a tort
5. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

One idea, two maxims. The plaintiff must show the violation of a legal right. If he shows that, loss is unnecessary (injuria sine damno). If he cannot, even heavy loss gives no claim (damnum sine injuria). Learn one leading case for each side and the answer writes itself.

1. Ubi jus ibi remedium

The maxim means “where there is a right, there is a remedy.” A right that the law will not enforce is no right at all, so the existence of a legal right carries with it a remedy for its breach. The maxim explains why the law of torts can expand: a court that finds a right infringed will find a remedy even if no earlier case gives one.

The classic statement is in Ashby v. White (1703). The plaintiff, a qualified voter, was wrongfully prevented by the returning officer, the defendant, from voting at a parliamentary election. The candidate he wished to vote for won anyway, so he suffered no loss. Holt C.J., whose dissent was upheld by the House of Lords, said: “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.” He added that every injury imports a damage, even if it does not cost the party a farthing.

The maxim has limits. It applies to legal rights only, not moral or social ones. It does not apply where the law deliberately gives no remedy, as in the cases of damnum sine injuria below, or where a statute gives a specific remedy that excludes others.

2. Injuria sine damno: legal injury without actual loss

Injuria means the infringement of a legal right; damnum means actual harm or loss in money, comfort, health and the like. Injuria sine damno is the violation of a legal right without any actual loss. It is actionable. Torts of this kind are said to be actionable per se: trespass to land, trespass to the person (assault, battery, false imprisonment), and libel.

Ashby v. White (1703). Denial of the right to vote, though the candidate won.
Marzetti v. Williams (1830). A bank wrongfully refused to honour a customer’s cheque although it held enough of his money. He suffered no actual loss but recovered damages for the violation of his right.
Bhim Singh v. State of Jammu and Kashmir (Supreme Court, 1985). An MLA was arrested and detained by the police, deliberately to prevent him from attending a session of the Legislative Assembly, and was not produced before a magistrate within the required time. The Court awarded Rs. 50,000 as compensation for the violation of his personal liberty, a clear example of damages for the invasion of a right as such.

3. Damnum sine injuria: actual loss without legal injury

Damnum sine injuria is actual loss caused without the violation of any legal right. It is not actionable, however great the loss and however deliberate the act. The law permits a person to compete, to use his land, and to exercise his rights, even if others suffer as a result.

Gloucester Grammar School case (1410). The defendant, a schoolmaster, set up a rival school next to the plaintiffs’ school. Students left the plaintiffs and the fees they charged fell from 40 pence to 12 pence a quarter. The plaintiffs had no remedy. Competition is lawful, and loss caused by it violates no right.
Mogul Steamship Co. v. McGregor, Gow & Co. (1892). Shipowners formed an association and offered low freight rates and rebates to drive the plaintiff out of the China tea trade. The House of Lords held that acts done to protect and extend trade, by lawful means, are not actionable even if a competitor is ruined.
Chasemore v. Richards (1859). A landowner sank a well and drew off underground water that would otherwise have reached the plaintiff’s mill. No right was infringed; there is no right to percolating water in an undefined channel.
Bradford Corporation v. Pickles (1895). Pickles drained water on his own land to force the Corporation to buy him out. Even with a bad motive, he exercised a legal right. (See the note on mental elements.)
Town Area Committee v. Prabhu Dayal (Allahabad High Court, 1975). The plaintiff built shops without giving the notice required by the municipal law, and the Committee demolished the illegal construction. His claim for compensation failed. The construction was unlawful, so its demolition, though it caused him loss, infringed no legal right of his. Malice alleged against the Committee did not change this.
Ushaben v. Bhagyalaxmi Chitra Mandir (Gujarat High Court, 1978). A suit to restrain screening of the film Jai Santoshi Maa on the ground that it hurt the plaintiff’s religious feelings failed. Hurt to religious feelings, by itself, is not a legal right that the law of torts protects.

4. Legal damage as an essential of a tort

The two maxims lead to one proposition: the essential of a tort is legal damage, meaning the infringement of a legal right, and not actual damage. The test is not “did the plaintiff lose?” but “was a right of his violated?”

Where the tort is actionable per se, the plaintiff need prove only the violation.
Where the tort is actionable only on proof of damage (negligence, nuisance, slander in most cases), actual damage is itself part of the wrong, so it must be proved. Even here the damage must flow from a violation of a right.
Absence of loss affects the amount of damages, not the existence of the claim. Where there is a violation but no loss, the court may award nominal damages.

Trap. Do not write that every loss is actionable or that loss is necessary for every tort. Both are wrong, and the two maxims exist to show it. Use the formula: legal damage is essential, actual damage is neither necessary nor sufficient.

5. Problem

A opens a coaching centre opposite B’s long-established centre and charges half the fee. B’s enrolment falls by 60 per cent. B sues A for damages. Decide.

Issue. Whether loss caused by lawful competition is actionable.

Law. A tort requires the violation of a legal right. Loss without such violation is damnum sine injuria and gives no claim: Gloucester Grammar School, Mogul Steamship.

Application. B has no legal right to be free from competition. A used lawful means: a lower fee and a nearby location. Unless A used unlawful means, such as defamation of B, passing off, or inducing breach of B’s contracts, no right of B is infringed. The size of B’s loss is irrelevant.

Conclusion. B’s suit fails. The facts are almost identical to the Gloucester Grammar School case.

How this is examined

As an essay: “Legal damage is an essential of a tort. Explain” or “Discuss injuria sine damno and damnum sine injuria with cases.” Open with ubi jus ibi remedium and Ashby v. White, take each maxim with two or three cases (include one Indian case on each side), and close with the formula on legal damage. As a short note: either maxim alone, or Ashby v. White. A short problem on rival businesses is a common way to test damnum sine injuria.