Legal maxims under law of torts

LAW STUDENT'S CORNER

KUNAL SINGH

2021-09-07 7 min read

DAMNUM SINE INJURIA ESSE POTEST

Also written as DAMNUM SINE INJURIA

Meaning: There can be damage without any act of injustice.

Explanation: There are certain instances that appear to be inflicting injury to a party but are not in violation of any law or the legal right of that party. The damage caused to a person, if not violating his legal right, creates no provision for the remedy for that damage. It is very important to note that every damage or injury is not an infringement of a person’s legal right.

Let’s take the “Gloucester Grammar School Case” as an example; it was held that the damage caused to the plaintiffs was due to the competition of the rival school. It was observed that though there was a comparative loss of money to the plaintiffs due to the competition created by the defendant, it could not be taken as a reasonable ground to have a claim in law for that injury. Further, no illegal act was done by the defendants by establishing the school opposite to the plaintiffs.

Therefore, with the help of this and other similar cases, this maxim specifies,

1. That a legal act, (even if followed by mala fide intention), but not causing an infringement to the legal right of a person, does not provide for a remedy for the damage caused.

2. That an illegal act, whether intentional or unintentional, which injures the plaintiff can be claimed as a basis for compensation.

3. That every damage caused is not a violation of a legal right.

INJURIA SINE DAMNUM

Meaning: Infringement or violation of a legal right without actual damage caused.

Explanation: This maxim lays down the principle that a person whose right (conferred by law) has been violated can seek remedial action in the court of law even if no actual harm or damage is caused to that person.

The aim is that no act of violation of law should be made unaddressed. The legal right vested in the person is conferred by law and any violation of the right, whether petty or serious, will be a violation of the provision of law. Cases under this focus on the fact that these are actionable in the court of law even without actual proof of damage to the aggrieved party provided that some violation of the legal right of the party has been done.

VOLENTI NON-FIT INJURIA

Meaning: There is no injury to one who consents.

Explanation: This maxim lays down the principle that the plaintiff cannot claim any compensation or remedy for the damage caused through an act in furtherance of his consent.

This maxim is a kind of defence that can be taken by the respondent to avoid his liability. It is observed that when the plaintiff voluntarily agrees to participate in an act which he knows can result in causing some injury to him but still does it, no ground for remedy can be claimed by him if actual harm is inflicted on him as a result of that act. Hence, it is mentioned that no right can be enforced which was voluntarily waived by the plaintiff due to his negligence.

SCIENTI NO FIT INJURIA

Meaning: Mere knowledge of the risk does not imply consent to suffer the harm.

Explanation: This maxim is a restriction to the rule of volenti non-fit injuria. The defence of consent can only be taken in cases that fulfils these two essentials:

1. That the plaintiff knew about the risk in a particular act, and

2. That the plaintiff after having the knowledge of the danger gave his consent to suffer the harm that could be caused in furtherance of that act.

Now, as per the rule of scienti non-fit injuria, only the first element is being fulfilled, and the absence of the second element makes this maxim a ground for the plaintiff to claim remedy in the court of law.

Cases of “vicarious liability” generally comes as an example under this rule where if an employer is forced to do a work which he knows to be risky but has no authority in denying it and then if harm or injury has been caused while doing the act then he will be compensated because even though he knew about the risk, he did not give his consent to do it.

UBI JUS, IBI REMEDIUM

Meaning: Where there is a right, there is a remedy.

Explanation: The law of torts is considered as a civil wrong that accounts for the protection of the legal right of an individual. The nature of this law is to provide the individual with the right and if there is a violation of that legal right then to provide a remedy in the form of compensation to the aggrieved party.

This legal maxim states the very basic nature of the law of torts, i.e., if there is a right available to a person then there shall also be a provision for a remedy in case of any violation or infringement of that legal right; and no right can be provided without having a remedy for it.

EX TURPI CAUSA NON ORITUR ACTIO 


Meaning: No action arises out of a wrongful consideration. 

Explanation: The concept of “consent” has significant importance in determining the tortious liability in a case. With a slight change in the action of a person, the liability shifts towards the other party. 

This maxim is responsible for creating that difference up to a certain point. It is stated that whenever consent is given on behalf of the plaintiff, does not call for defence by the defendant if that consent has been obtained by fraud or any wrongful representation or any misconception. This lays down the theory that the plaintiff gave his consent believing the fact presented in front of him to be true, whereas, those circumstances were falsified and misrepresented by the defendant. 

Hence, the plaintiff has the privilege to take this maxim as a ground to claim remedy against the defendant. 

NOVUS ACTUS INTERVENIENS 

Meaning:  A new intervening act.

Explanation: An injury, if caused by a wrong or a negligent act on part of the defendant, then he would be held liable for it. This is a general rule under torts. However, there are some circumstances in which the damages caused is due to the aggravation of certain actions over which the defendant has no control. The injury may occur due to those additional acts to which the defendant is not responsible even though the wrong was initiated by his acts in the first place. 

This maxim works as a defence so as to clarify the fact that even though the wrong was committed on part of the defendant, the resulting injury or damage from that wrong is due to the intervention of a new act that aggravated the effect of the injury of that wrong. 

Hence, if that intervening act was unforeseeable by the defendant, only then he would be able to get relief from the liability.

QUI FACIT PER ALIUM FACIT PER SE 


Meaning: A person who acts through another act.

The acts of an agent are considered the acts of the principle. 

Explanation:  As per the definition, this maxim gives meaning to two different branches of law. Under the law of torts, this gives rise to the concept of “vicarious liability” and under criminal law, the concept of “abetment” can be taken into light. 

The situation under vicarious liability provides that the acts of an agent are the acts of his principal. this creates joint liability on both. To determine the liability of the principal, it is observed that whether the act was done by the employee was during the course of his employment or not. 

It is extremely important to understand that if the servant has taken a separate action of his own but during the course of his employment then if an injury is caused due to that act, the master will also be held responsible equally though it is not his fault. 

Explanation 2.
The maxim “Qui facit per alium facit per se” is somewhat the origination of another maxim, i.e., “Respondeat superior” which carries the same theory. It means ‘let the principle answer’ for the acts done by the servant. 

RES IPSA LOQUITUR


Meaning: The thing speaks for itself.
The meaning under Black’s Law Dictionary specifies that the doctrine of res ipsa loquitur provides that, in some circumstances, the mere fact of an accident’s occurrence raises an interference of negligence so as to establish a prima facie case.

Explanation: As per the general rule, the onus to prove negligence in a case lies primarily on the plaintiff. However, there are some cases in which there is a prima facie presumption that the accident caused could only happen due to the negligence that might have been shown on the part of the defendant. This is due to the rule of res ipsa loquitur. 

Now, to establish this rule in a case, the following essentials must be present: 

The accident caused, could not have been occurred unless the defendant had been negligent; and  

The material/reason involved in the occurrence of the accident was under the control of the defendant. 

The presence of the above essentials supports this doctrine, shifting the burden of proof on the defendant. This doctrine was also observed in Nirmala v/s Tamil Nadu Electricity Board, AIR 1984 Mad 201. 

DE MINIMIS NON CURAT LEX

Meaning: The law does not notice or concern itself with trifling matters. 

Explanation: As per this rule, the law is concerned with serious matters and does not account for very trifling acts. 

For example, under torts, injury to comfort or health constitutes a nuisance. However, it shall be kept in mind that the level of discomfort or nuisance caused, is a trifling act or not. To determine this, the court has to see the level of inconvenience and discomfort from the point of view of an average person in the community. This is so because it is a possibility that a particular person could be over sensitive. 

Hence, if an act causes harm to a person then it shall be observed that whether that act was in an ordinary course, to the mentality of an average person was injurious or not. 

CAUSA SINE QUA NON

Meaning: A necessary cause; the cause without which the thing cannot be or the event would not have occurred. 

Explanation: As explained by law, any wrong which is caused, must be based on some initiation or due to some reason. Without that cause, the defendant’s liability would not be proved. To establish the liability, it is necessary to establish the cause of the action that has taken place. And with its absence, no case would have the merit to be held up in the court of law. 

Get in touch

Officce Address

119, Pocket-5, Sector-2, Rohini, Delhi-110085

Contacts

+91 87006 59855
kshitij@lawyerslawker.com

kunal@lawyerslawker.com