"injury"; that is, "injuria," which, in turn, is "invasion of legal rights"; "obstruction," or "hindrance," as Lord Holt would have called it.
But at common law, as Broom says (Maxims) at p. 157: "Although damnum absque injuria is a matter of frequent occurrence, yet injuria absque damno may be said to be unknown to our law; for 'a damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right.' Per Holt, C. J. Ashby vs. White, 2 Ld. Raym. 955." This is finely stated by Lord Esher, M. R., in Campanhia vs. British (1892), 2 Q. B., at p. 405: "Damages," he says, "cannot be asked for as being themselves a cause of action. No one can seek damages on the bare assertion that he is entitled to damages, and therefore claims damages. Damage is sometimes stated to be a cause of action, but then damage means injury. Damages are one of the reliefs asked for as the compensation for an injury. But then the injury is the cause of action." Which is almost a paraphrase of the Act!
The fundamental, the original purpose of damages was the preservation, the vindication of the enjoyment of rights; that is, of liberty itself; and, thus, arose the necessity of the constitutional right and provision guaranteeing a trial by jury in civil cases; for juries were always considered by freemen as the best appraisers of the value of that intangible thing called liberty, upon which, however, the value and enjoyment of all tangible things must ultimately depend. And no one but a jury has any constitutional right to fix them in an action for tort. Watt vs. Watt, (1905), A. C. 120.
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