12 Action.
Sect. 3.
Damnum absque injuria.
can recover no damages for the seduction, though he may have incurred expense in maintaining the woman seduced, the injury to his feelings not being in the eye of the law an injuria (k).
Fatal injuries.
12. A man's wife or child may suffer the greatest pecuniary loss by his death; yet at common law they had no remedy against a person who by an act of negligence caused such man's death, even though the victim, had he been merely incapacitated for life, could have recovered substantial damages (l). At the present day, however, this grievance has to some extent been removed by statute (m).
Defence against a common peril.
13. Acts done in self-defence against a common enemy, e.g., the erection of banks to prevent inroads of the sea or of floods, do not amount to an injuria, though they may cause damnum to neighbours by diverting the water on to their lands (n). Conversely at common law a man may, apart from any prescriptive liability to repair it, allow his wall or bank to fall to pieces, although floods are thereby allowed to reach his neighbour's field (o); but there is a distinction between keeping out a flood—the common enemy—and getting rid of flood water already upon a man's own land; such water he must not deliberately drain on to another's land to its damage (p).
Defamation.
14. Another instance of damna absque injuria is supplied by that branch of the law which deals with libel and slander. Speaking generally, a man has a right to claim that he shall not be damnified by defamatory statements made about his character. If such a defamatory statement be made in writing, the law, indeed, presumes that he is damaged (q). So too if it be made orally, and is a statement of a particular character (r); and in other cases of oral defamation he can maintain an action upon proof of actual damage (s).
Privileged defamatory statements.
On the ground of public policy, however, it has been considered desirable that no action shall lie in respect of statements, however defamatory and damaging, made under certain particular circumstances.
- Davies v. Williams (1847), 10 Q. B. 725; Harris v. Butler (1837), 2 M. & W. 539; Whitbourne v. Williams, supra; Hamilton v. Long, [1903] L. R. 2 Ir. 407, affirmed [1905] L. R. 2 Ir. 552.
- (k) Yet if he can prove loss of service, it is a recognised principle that he may have damages not only for that, but also for injury to his feelings (Irwin v. Dearman (1809), 11 East, at p. 24; Terry v. Hutchinson (1868), L. R. 3 Q. B. 599).
- (l) Osborn v. Gillett (1873), L. R. 8 Ex. 88.
- (m) Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93), commonly called Lord Campbell's Act; see title Negligence.
- (n) R. v. Pagham Commissioners (1828), 8 B. & C. 355; Nield v. London and North Western Rail. Co. (1874), L. R. 10 Ex. 4. As to damage caused by pulling down a burning house, see Maleverer v. Spinke (1537), Dyer, 35 b, 36 b; Dewey v. White (1827), Mood. & M. 56.
- (o) Hudson v. Tabor (1876), 2 Q. B. D. 290. See Nitro-phosphate Co. v. London and St. Katherine's Docks (1878), 9 Ch. D. 503, as to liability for actively interfering with a river wall.
- (p) Whalley v. Lancashire and Yorkshire Rail. Co. (1884), 13 Q. B. D. 131.
- (q) Ratcliffe v. Evans, [1892] 2 Q. B. 524. per BOWEN, L.J., at p. 529; South Hetton Coal Co. v. North Eastern News Association, [1894] 1 Q. B. 133, at p. 144. The presumption is apparently based on the principle that littera scripta manel. See generally, on the subject of defamation, title Libel and Slander.
- (r) I.e., imputing a criminal offence, imputing unchastity to a female, imputing certain contagious diseases, or relating to a man's office, profession, or trade.
- (s) Stanhope v. Blith (1585), 4 Co. Rep. 15; Hopwood v. Thorn (1849), 8 C. B. 293; Savile v. Jardine (1795), 2 H. Bl. 531; Davies v. Solomon (1871), L. R. 7 Q. B. 112.
