Duhaime's Law Dictionary


De injuria sua propria absque tali causa Definition:

Latin: of his own wrong (or injury) without any other cause.

Also de injuriâ suâ propriâ absque tali causâ.

A reply to a statement of defence (anciently called a replication), in a tort or personal injury case, used by a plaintiff to counter the proposal made by a defendant who, though admitting the events alleged, proposes that those events were put in play or otherwise the responsibility, of or under the control of the plaintiff. De injuria sua propria absque tali causa is a defence/defense to a defence/defense.

Thomas Tayler proposes this minimalist description: "De injuria sua propria, absque residua causa - of his own wrong (or injury) without any other cause."

De injuria sua propria, absque residua causa is not an ancient maxim of the Roman law but, instead, was created in Latin by English lawyers centuries ago (re "invention" see the comments in the American Law Register cited below) to refer to a very specific reply made by a plaintiff to counter an attempt by a defendant in the defendant's pleadings, to suggest that personal injury, if any, were not of his or her cause or if they were, there was a lawful reason for it (eg. a justification).

De injuria sua propria absque tali causaAlthough Tayler's awkward "of his own wrong (or injury) without any other cause" is faithful to a strict Latin-English rendering, the following rendering seems more in keeping with the context in which this form of a reply is tendered, by a plaintiff, to a suggestion made by a defendant that injury, if any, was either justified or was caused by the act or omission of the plaintiff:

"The injury is a result of his (the defendant's) actions and not the other proposed cause(s) he/she sets out."

De injuria sua propria absque tali causa has been and is still frequently used in personal injury law although rarely with reference to the Latin phrase. In reference to modern tort or personal law, it is certainly not unusual that after a defendant through a lawyer, or directly, sets up a defense/defence deferring to either a justification or some contributory action or omission by the plaintiff who thereafter unfairly seeks to hold the defendant responsible for damages. The plaintiff replies de injuria sua propria absque tali causa, "I don't think so" or "nice try" in common language. Thus, a defence/defense to a defence/defense.

Justice of the United States Supreme Court, in Erskine v Hohn, described the Latin phrase as follows:

"... that the defendant committed the several trespasses mentioned in the declaration of his own wrong, and without the cause alleged by him."

In an 1863 edition of the American Law Register, this comment on the subject of Notes Upon the Traverse De Injuria:

"... the ancient pleaders invented the traverse de injuria sua propria absque tali causa, as it was called, which, in cases to which it was applicable, had the effect of throwing upon the defendant the necessity of proving all the material allegations in his plea, just as the issue non assumpsit threw upon the plaintiff the burden of proving all the allegations in his declaration."

In Janson v Brown, de injuria sua propria absque tali causa was successfully used by the plaintiff, the dead dog's owner, a Mr. Janson.

Refererences:

  • Janson v Brown, 170 ER 869 (about 1800)
  • NOTE 1: Erskine v. Hohnbach, 81 U.S. 613 (1871)
  • Notes upon the Traverse de Injuria , 11 Am. L. Reg. 577 (November 1862 to November 1863)
  • Tayler, Thomas, The Law Glossary (London: Lewis & Blood, 1856), page 118.
     

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