Damage without a legal wrong or damnum sine injuria is a loss or damage which does not have a legal remedy. Damage without a legal injury is where a wrong or damage has been done to a person, nevertheless, the person has no right of action to recover compensation because no legal wrong has been committed. It is a damage suffered without the breach of
a legal right. Thus, the mere fact that a person has been harmed does not entitle him to maintain an action, unless a legal wrong has been done to him.
For a suit to succeed, the damage must result from a breach of a legal right of the plaintiff.
Where a damage is suffered without the breach of a legal right, it is known in Latin as damnum sine injuria that is, damage without injury. Examples of damages without legal injury are:
1. Trade compensation
2. Defamation on a privileged occasion
3. Lawful use of property or lawful conduct; and 4. Perjury
We shall briefly examine these torts.
Trade Competition
Ordinary trade competition among several traders who sell the same or similar goods or services may cause harm to a trader who cannot compete. This may lead to loss of customers and livelihood. However, this does not give a right of action. Thus, where a big supermarket or dealer sets up business next to a small retailer and sells at cheaper prices, as a result of which the retailer being unable to compete is forced to close down his business, harm is done to him as his livelihood is lost and he may suffer other consequential losses. Nonetheless, there is no legal wrong committed by the big supermarket. Thus, right of action will not lie and no remedy will be offered to the retailer who has suffered.
Therefore, where right of action is based on the occurrence of a legal wrong or legal damage; a tort or wrongful act is not actionable per se upon commission, unless a legal wrong or legal damage is done to the plaintiff. In such instances, liability only attaches when damage is caused to the plaintiff. Accordingly, the plaintiff will only succeed if he can prove that the defendant has infringed his legal right or done a legal wrong and that thereby he has suffered harm or injury.
In Mogul Steamship Co. V. McGregor Gow & Co. and Ors. (1892) AC 25, the plaintiff appellant company and the defendant respondent companies were rival traders in China tea. The defendants formed an association to the exclusion of the plaintiff and persuaded tea merchants in China not to act as the plaintiff’s agents; otherwise their agency would be withdrawn by the association. The plaintiff then brought action against the associated defendants alleging a civil conspiracy to injure the plaintiff’s trade.
The House of Lords held that the defendant companies acted with the lawful object of protecting, extending their trade and increasing their profits. The House of Lords went on to say that since the means they used were not unlawful, the plaintiff had no cause of
action even though the plaintiff may have suffered injury. Therefore, trade conspiracy per se without more is not a tort unless it is accompanied by some unlawful act.
Defamation made on a privileged occasion
Another example where there is a damage but there is no right of action is when a defamatory statement is made on a privileged occasion. Defamation on a privilege occasion is where a person is defamed but the plaintiff has no right of action because the defamation was made on a privileged occasion. In this instance, damage is occasioned to the plaintiff but there is no legal wrong done and consequently there is no right of action to recover compensation for defamation. See the case of Chatterton V. Secretary of State fro India (1895) 2 QB 189; and Ayoola V. Olajire (1977) 3 CCHCJ 315.
Lawful use of Property
As a general rule of law, lawful use of property or lawful conduct without more is not a legal wrong against which right of action and remedy lies. However, when lawful use of property degenerates or graduates into nuisance or other legal wrong or breach of law, right of action and remedy then lies.
In Bradford Corporation V. Pickles (1895) AC 587 HL, the parties were adjoining land owners. The defendant corporation had statutory powers to take water from certain springs. Water reached these springs by flowing in undefined channels through the neighbouring land belonging to the defendant. The defendant with a view to inducing Bradford Corporation to buy his land at a high price, sank a shaft on his land to collect the passing water and thereby interfered with the flow of water into the corporation’s reservoir.
The corporation applied to court for an injunction to restrain him from collecting the underground water in his borehole. The court held that an injunction would not lie. The defendant was entitled as an owner to draw from his land the underground water. His
“malice” if any, in trying to force the purchase of the land was irrelevant. No lawful use of property can become illegal if done with an improper motive. Therefore as a general rule, lawful use of one’s property is not a legal wrong, unless such use degenerates into nuisance or other breach of law.
Perjury
Perjury is the offence of knowingly making a false statement or giving false evidence in a judicial proceeding in which one is a party or was called as a witness to give evidence.
Therefore if a person goes to court and gives any evidence which the person knows to be false, he commits the offence of perjury and if he is discovered he may be prosecuted and sanctioned for it in criminal law. See section 117 of the Criminal Code Act. See also the following cases: Cadell V. Palmer (1831) 6 ER 956; R V. Hall (1982) 4 CAR 153; R V.
Rider (1986) 83 CAR 207; and R V. Peach (1990) 2 All ER 966.
However, whether or not the person is discovered and prosecuted for it, the party who is injured by the perjury has no right of civil action for remedy in respect of the perjury per se, although he may be able to go on appeal on other points of law in the proceedings in which the perjury was committed.
In Hargreaves V. Bretherton (1958) 1 QB 45, the plaintiff brought an action for damages against the defendant on the ground that the defendant had falsely, maliciously and without just cause committed perjury as a witness by giving false evidence at the trial of the plaintiff for certain criminal offence and that consequently he the plaintiff had been convicted and sentenced to eight years imprisonment. The court held that no right of action lied as the plaintiff’s action was based on the purported tort of perjury. There is no tort of perjury.
In Roy V. Prior (1971) AC 470, the plaintiff sued the defendant for damages alleging inter alia that the defendant caused his arrest and forcible attendance at court to give evidence as a witness in a criminal proceeding by falsely saying in court that the plaintiff was evading a witness summons. It was held that there was no tort of perjury and therefore no cause of action lay against the defendant. See also Evans V. London Hospital Medical College (1981) 1 WLR 184.
The reason for this immunity from liability in civil action for perjury, lies in the public policy that witnesses should feel free to come and give evidence in legal proceedings.
However, the English Criminal Justice Act 1988 gives a prisoner whose conviction is quashed or pardoned due to perjury and so forth, a right to monetary compensation from the government to assuage his feelings and alleviate his sufferings for the perjury committed against him and his resultant conviction.