• Mr. Mir Adil Rashid

Types of Remedies under Tort Law

INTRODUCTION

When something that a party may have been enjoying has been taken away from the party by another party. The party from whom such rights have been taken away is the aggrieved party and this is an infringement of parties rights. In such cases, the legal remedy is one treatment, when the aggrieved person who was enjoying their rights before they were infringed is taken back to their position. They are said to have been provided with the legal remedy. There are various types of legal remedies.


In the law of tort there are two broad types of remedies:

  • Judicial remedies

  • Extra-Judicial remedies


JUDICIAL REMEDIES

These are the remedies that the courts provide to an aggrieved party judicial remedies are further off three main types:

  1. Damages

  2. Injunction

  3. Specific restitution of property

Damages

The amount of money paid to the aggrieved party to bring them back to the position in which they were before the tort had occurred is known as damages or legal damages. The primary remedy in a cause of action for torts are damages and the word "damages" should not be confused with the word "damage" that means harm or injury.


Types of damages

There are five types of damages:

  1. Nominal damages: Nominal damages are those in which even though the plaintiff has suffered a legal injury at the hands of the defendant, there is no actual suffered by him. These damages are provided in the cases of Injuria sine damno in which the Court recognises the violation of the right of the plaintiff but the amount of damages are so nominal or low because of no actual loss to the plaintiff.

  2. Contemptuous damages: In these type of damages, the Court recognises that the right of the plaintiff is violated but to show that the suit brought by the plaintiff is of such a trivial nature that it has only wasted the time of the Court, the Court awards a meagre amount to the plaintiff as damages. This is similar to the nominal damages but the only difference between the two is that in nominal damages the plaintiff suffers no actual loss and in contemptuous damages, the plaintiff suffers actual damage but it is a trivial one in which he does not deserves to be fully compensated.

  3. Compensatory Damages: Compensatory damages are awarded to help the plaintiff to reach his original position at which he was before the tort was committed against him. These damages are not awarded to punish the defendant but to restore the plaintiff to his previous situation. These damages are very helpful in cases of monetary losses in which the amount of loss can be easily calculated and therefore that amount can be ordered to be paid to the plaintiff so that he can replace the damaged product or goods with such amount.

  4. Aggravated Damages: These damages are awarded for the extra harm which is caused to the plaintiff which cannot be compensated by the compensatory damages and it is given for factors such as the loss of self-esteem, pain and agony suffered by the plaintiff etc. which cannot be calculated in monetary terms. These damages are therefore additional damages which are awarded to the plaintiff other than the damages awarded for his pecuniary loss.

  5. Exemplary/Punitive Damages: These damages are also known as exemplary damages and the purpose of these damages is to punish the defendant and to make an example of him so that others are deterred from committing the same act as he did. Thus, whenever a Court feels that the act of the defendant was severely gross, it awards punitive damages against him to the plaintiff.


General and Special Damages

General damages are ascertained by calculating the amount of actual loss suffered by the plaintiff. For instance, a person collides his car with a person due to his negligence. In this case, the actual damage suffered by the plaintiff will be compensated. On the other hand special damages are awarded by proving special loss, the plaintiff has to prove the loss suffered by him or her and there is no straight-jacket formula to derive the actual amount.


McLoughlin v. O'Brian: In this case due to the defendant's negligence the plaintiff's husband and three children met with an accident with the defendant. After seeing her husband and children grievously injured by the plaintiff and hearing about the death of one of her children the plaintiff suffered nervous and mental shock and went into a state of depression. The house of lords, in this case, ruled in favour of the plaintiff whereby she recovered damages for her nervous shock too.


Gujarat State Road Transport Corporation Ahmedabad vs Jayeshbhai Rambhai: The plaintiff, in this case, were relatives of a middle-aged couple who met with an accident when another bus drove over them as soon as they deboarded their own. The House of Lords delivered judgement in favour of plaintiffs and the plaintiffs received compensation from the defendant under the heading of pain, shock and sufferings.


Measurement of Damages

There are a number of factors, including the facts and circumstances of each case are to be considered to ascertain the damage. In deciding the quantum of damages there is no automatic formula. Damages are therefore awarded at the discretion of court. The main purpose of damages is to bring the plaintiff back into the position that he/she was in before the injury due to the tort occurred.


Injunction

An injunction can be defined as an order of the court that restrains a person from the commission of a wrongful act or orders the person to commit a positive act to reverse the results of a wrongful act committed by him. The injunction is an equitable remedy available in the torts and is granted at the discretion of the court. In order to receive injunction against a party, one must prove the damage or apprehended damage. Suit for an injunction can be filed by a party against any individual, group or even the state.


In the Case of State of Orissa v. Madan Gopal the court held that injunction is a judicial process whereby by the order of court the party is bound to do a particular act or stop himself from doing a particular act.


Types of injunction

  • Temporary Injunction: Temporary injunction also known as the interlocutory injunction is granted by the court during the pendency of a case to maintain the status quo and avoid further damages until the case is fully e decided. A temporary injunction may be granted during the pendency of suit at any stage it is granted to prevent the party from suffering through the damages during the court proceedings. While granting temporary injunction certain principles are to be kept in mind.

  1. There has to be a prima facie case.

  2. There must be an irreparable injury.

  3. Balance of convenience has to be maintained.

  • Permanent Injunction: Permanent injunction also known as perpetual injunction is granted by the court after the case is heard from both the sides and after the decree is passed. Since it is the decree of the court it is final and perpetually applicable. The permanent injunction is granted in the following cases,

  1. To avoid multiplicity of judicial proceedings.

  2. When the actual damage cannot be ascertained permanent injunction is granted.

  3. When damages are such which do not adequately compensate the plaintiff.

  • Mandatory Injunction: Mandatory injunction is when the court asks the party to do something or when the court compels a party to perform a certain act so as to bring the aggrieved party to the position that he or she was in before the defendant has committed the act.

  • Prohibitory Injunction: Prohibitory injunction means when the court asks the party not to do something or when the Court prevents/prohibits a person or forbids them from doing something that is wrongful. For instance, the court can order the parties to remove an object which is causing nuisance or may order the party to stop the act of nuisance.

In case Wollerton & Wilson Ltd v. Costain Ltd the tendency is to grant an injunction where there is a good chance of the tortious behaviour being repeated.


Specific Restitution of Property

The specific restitution of property is the third judicial remedy available in the law of torts. Restitution simply means the restoration of goods back to the owner of the goods. A person is entitled to the restoration of his property when he is wrongfully dispossessed of his property or goods by any other person.



EXTRA-JUDICIAL REMEDIES

Extrajudicial remedies are referred to those remedies where an aggrieved person can take such actions that can undo the damage that has happened to him without the court's intervention. when a person can without the intervention of court lawfully avoid or remedy himself, the Remedies are called extrajudicial remedies.

There are 5 types of extra-judicial remedies that are available to persons who have suffered from a tort or civil wrong. These include

  1. Right of re-entry on land

  2. Expulsion of trespasser

  3. Right of recaption of goods

  4. Abatement of nuisance

  5. Distress damage feasant


  • Right of re-entry on land

The owner of the property has complete right and authority to remove the trespasser by using a reasonable amount of force from his own property and re-enter the same. The owner instead of approaching the court and filing a suit for Injunction have complete rights to remove the trespasser and enter his land.


  • Expulsion of trespasser

A person who is having lawful possession of property he has Authority that he can expel a trespasser by using a reasonable amount of force. But in this case two requirements must be satisfied: The person should be entitled to immediate possession of his property and the force used by the owner should be reasonable.


  • Right of re-caption of goods

A person who is having possession of any good has the right to take back his goods from the person who has wrongfully stolen the goods. Specific restitution is different from re-captioning of goods, re-caption of goods is an extrajudicial remedy wherein the person did not ask the court for assistance but the person takes the law into his own hands.


  • Abatement of nuisance

Whether it is a public or private nuisance any person has the right to remove the object which is responsible for causing that nuisance. No one is allowed to cause any harm to anyone during the course of abetment and should peacefully do the same. For instance, A and B are neighbours, branches of a tree growing on A's apartment enter B's apartment from over the wall. After giving notice to A by B. B can himself cut or remove the branches if they are causing him a nuisance.


  • Distress damage feasant

The owner of the property can take the possession of cattle or beasts wherein the cattle or beasts of another person have spoiled his crops until he is compensated for the loss suffered by him. The term distress means to detain, damage means injury and the word feasant refers to the object through which the wrong has been caused. The person is bound to take the responsibility for the detained object or cattle till the owner of the object or cattle compensates for the damage.


The author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.

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