This Article has been written by Maria Sharwari from Surendranath Law College, Kolkata

Introduction

There are two main types of law: codified and uncodified. Codified law is a formal document that is consolidated into a single text, like the Constitution of India. Uncodified law, on the other hand, is an unwritten and unconsolidated document that relies heavily on judicial precedents, such as the Common Law of England. The Law of Torts is a branch of uncodified law that, like many other laws, has been borrowed from English Law.

The word “tort” in law means a wrong or injury, which has certain characters, the most important of which is that is it redressable in an action for damages at the instance of the person wronged or injured. We can consider assault, libel, trespass and nuisance as few examples. A tort, precisely, is the violation of a right of a person or a breach of duty of another towards him/her.

In tort law, a remedy in the form of monetary compensation is given to the aggrieved party. Damages, in a legal sense, is the sum of money, the law impose for a breach of duty or violation of some right. More appropriately, damages are money claimed by, or ordered to be paid to, a person as compensation for loss or injury.^[1]

1.Injury

Legal injury, whenever there is a violation of legal right of an individual. It is said to have caused a legal injury or injury.

Example: Right to speak, right to vote, right to privacy etc. if there is any violation of above said rights. It will cause an injury.

When someone pursues a claim under a tort, the goal (or legal remedy) is usually the award of damages. Damages in tort are generally awarded to restore the plaintiff to the position he or she was in had the tort not occurred.

In law, damages are an award, typically of money, to be paid to a person as compensation for loss or injury. Damages are classified as compensatory (or actual) damages and punitive damages. Compensatory damages are further categorized into special damages, which are economic losses such as loss of earnings, property damage, and medical expenses, and general damages, which are non-economic damages such as pain and suffering and emotional distress.^[2]

The different types of injuries that might be suffered by a person are:

• INJURY TO SELF – this refers to any harm that is inflicted on the person’s body and could translate to crimes such as assault as given under section 351 of the INDIAN PENAL CODE 1860.
• INJURY TO REPUTATION – this refers to any harm or damage that is caused to a person’s social standing or reputation through the acts of another, this could include slander and defamation as given under section 499 of the INDIAN PENAL CODE 1860.
• INJURY TO RIGHTS – this includes any violation that are made to the legal and statutory rights of a person to prevent them from enjoying and exercising the same, this could include fundamental rights violations and violations of any other right guaranteed by a statute like easementary rights given by the INDIAN EASEMENT ACT 1882.
• INJURY TO PROPERTY –This kind of injury refers to any harm, interruption or violation that is caused to the continued enjoyment of a person’s movable and immovable property, this could include, trespass as defined under section 441 in the INDIAN PENAL CODE 1860.
• INJURY TO INTEREST- any acts that result in the interference and disruption of a person’s interests, could include violations under tort law.

2.Damage

Simply put, the term damage in legal parlance refers to the loss or any form of injury or disadvantage caused to a particular individual through natural means, and accident or intentional actions with motives can be termed as damage. Damage caused could be a result of an inevitable disaster, carelessness on the part of the individual who caused it or just plain negligence. The important thing to understand here is that the loss that is suffered cannot always have a remedy if it is caused by a natural disaster or any inevitable accident which no reasonable man could foresee. But when a situation arises that damage caused is a result of actions taken by individuals with malicious intent, or even if the individual failed to take due care regarding the object on which the damage was inflicted, the sufferer of the damage will have a right to claim.^[3]

The term “damage” mainly refers to the loss or injury that is suffered. The scholar Pothier defines the word in a unique way, “dommages et interets,” taking a multidimensional approach. He considers one aspect stating that it could be any loss or injury suffered, and conversely, he also considers the other dimension and further adds that it might also be explained as the lost opportunity to make any gains. When the damage sustained is a result of an inevitable accident or disaster, the damage is sustained by the person alone. However, when the damage sustained is a result of any activity resulting from the action or inaction of others, the person may hold the causing agent accountable for the loss sustained. The establishment of damages is extremely necessary to reach the stage of damages. The existence of damage sustained can give rise to a claim for damages when certain things are proved.

3. Damages

There are many remedies which are available to the injured person and the most common remedy is the award of damages. Damages is that amount of money which the injured person gets from the person who caused injury to him.^[4]

In a claim for damages, the person should have suffered a legal injury because in case no legal injury happens a person cannot claim damages even if he suffered an actual loss. It can be understood with the help of these maxims:

• Injuria sine damno, it means that there is a legal injury without any actual damage. Here the legal right of an individual is violated therefore he has a right to go to the court to enforce such right.
• Damnum sine injuria, it means that there is actual damage but no legal injury and thus the person cannot go to the court to enforce his right because he has no such right in the absence of a legal injury.

Damages can be provided in the cases of injuria sine damno but not in a case of damnum sine injuria.

Another important point about ‘damages’ is that they are different from ‘damage’ even though they both sound the same they have a different meaning. Damage is the loss suffered by the person due to the wrongful act of another person whereas, Damages is the amount of money which is paid as compensation for the injury suffered by a person.^[5]

Difference between Damage and Injury

Damage is a broad term that signifies harm or adverse effects on objects, reputation, or abstract concepts. It doesn’t necessarily denote harm to living beings. Conversely, Injury is primarily used to describe physical harm or trauma inflicted upon living organisms, most commonly humans.^[6]

Difference between Damage and Damages

Section 73(1) and (3) of the Indian Contract Act 1872 provide for the claim of damages, clause one states that any damage that has been sustained by any party due to breach of contract can be awarded damages. Clause three of the above-mentioned Section talks about damages that may be awarded in case of violations of any obligation that resemble those arising out of a contract. From this provision, we can identify both the terms and their distinct meaning from the language of the provision. Here we can understand that damage is referring to the loss that was suffered, and subsequently, damages indicate the claim that arises due to the damages. The claim for damages cannot exist without the damage and the provision gives recognition to both the terms, in every situation where damage is sustained damages will follow.^[7]

Essentials of a Tort

To constitute a tort, it is essential that the following two conditions are satisfied:

1. There must be some act or omission on the part of the defendant; and

2. The act or omission should result in legal damage (injuria), Le, violation of a legal right vested in the plaintiff.

1. Act or Omission

In order to make a person liable for a tort, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is illegally made, will make a person liable. For example, A commits the act of trespass or publishes a statement defaming another person, or wrongfully detains another person, he can be made liable for trespass, defamation or false imprisonment, as the case may be. Similarly, when there is a legal duty to do some act and a person fails to perform that duty, he can be made liable for such omission. For example, if a corporation, which maintains a public park, fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruits of the poisonous tree and dies, the Corporation would be liable for such omission. Similarly, if the Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of a number of persons, the Corporation would be liable for its omission to take care in the matter. In the same way, an employer failing to provide a safe system of work, would be liable for the consequences of such an omission.

It may be noted that the wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability for the same. For example, if somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child.^[8]

2. Legal Damage

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. In other words, it has got to be proved that there was a wrongful act-an act or omission- causing breach of a legal duty or the violation of a legal right vested in the plaintiff. Unless there has been violation of a legal right, there can be no action under law of torts. If there has been violation of a legal right, the same is actionable whether, as a consequence thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria sine damno.” Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized interference, howsoever trivial, with the plaintiff’s right. Damnum means substantial harm, loss or damage in respect of money, comfort, health or the like. Thus, when there has been injuria or the violation of a legal right and the same has not been coupled with a damnum or harm to the plaintiff, the plaintiff can still go to the court of law because no violation of a legal right should go unredressed.

Since what is actionable is the violation of a legal right, it therefore follows that when there is no violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused some loss or harm or damage to the plaintiff. This is expressed by the maxim ‘Damnum sine injuria’. It means that a damage without the violation of a legal right is not actionable in a court of law. The reason for the same is that if the interference in the rights of another person is not unlawful or unauthorized but a necessary consequence of the exercise of his own lawful rights by the defendant, no action should lie. Thus, the test to know whether the defendant should or should not be liable is not whether the plaintiff has suffered any loss or not but the real test is whether any lawful right vested in the plaintiff, has been violated or not.^[9]

1. Injuria sine damno

Injuria sine damno means violation of a legal right without causing any harm, loss or damage to the plaintiff. There are two kinds of torts :

Firstly, those torts which are actionable per se, i.e., actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused by an act.

Injuria sine damno covers the first of the above stated cases. In such cases, there is no need to prove that as a consequence of an act, the plaintiff has suffered any harm. For a successful action, the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e., there is injuria.^[10]

2. Damnum sine injuria

It means damage which is not coupled with an unauthorized interference with the plaintiff’s lawful right. Causing of damage, however substantial, to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. This is generally so when the exercise of legal right by one results in consequential harm to the other. “The mere fact that a man is injured by another’s act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.”^[11]

Case Laws

1. 1. In the case of Ashby v. White (1703) 92 ER 126, the plaintiff was prevented from voting by the defendant and the candidate for whom the plaintiff was going to vote still won. The plaintiff sued the defendant. It was held that even though no actual damage was suffered by the plaintiff, the defendant was still liable for preventing him from exercising his legal right to vote and thus nominal damages were awarded in this case.^[12]
   2. In Mogul Steamship Co. v. McGregor Gow and Co., a number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.^[13]
   3. In the case of Constantine v. Imperial London Hotels Ltd., The plaintiff was a cricketer from West Indies who had gone to the defendant hotel to stay but he was rejected on the basis of his nationality, therefore, the plaintiff stayed at another hotel and did not suffer any actual damage. In the case brought by him, the defendant was held liable because the plaintiff’s legal right was violated despite no actual injury happening and they had to pay nominal damages of five guineas.^[14]

Conclusion

It can be inferred that while the terms may sound alike, they are actually quite different from a legal standpoint. One term is used to describe the loss experienced, while the other refers to the responsibility or liability that arises from the loss for the guilty party. This difference is the foundation for one of the most frequently used remedies available in legal proceedings.

References

1. Modhura Roy; “Quantum of Damages
2. Jyoti Pal, “Damage vs. Injury
3. Ms Apurva Shekhar; “Differences beween Damage and Damages”;
4. Adarsh Singh Thakur, “ Damages under Tort Law”
5. Supra note 4
6. Tayyaba Rehman,”Damages vs Injury- Whats the Difference?”
7. Supra note 3
8. Dr. R.K.Bangia; Law of Torts ,p. 16,17. (Allahabad Law Agency, Haryana, 2021)
9. Supra note 7
10. Supra note 7
11. Supra note 7
12. Supra note 4
13. Supra note 7
14. Supra note 4