Remedies under law of torts

This presentation explains two broad types of remedies in Law of Torts i.e. Judicial and Extra Judicial Remedies

1. Remedies under law of torts Dr. Mrs. Sonali J G aikwad Assistant professor D. G. B. Dayanand law college, Solapur B.A, LL.M., NET, SET, P h.D.

2. Remedies in Torts are of Two types Judicial remedies:- Judicial remedies are remedies by way of action at law. The injured party may institute a suit in a Court of law and obtain redress. 2. Extra-judicial remedies:- These are available to a party by his own acts alone without resorting to the aid of law e.g. expulsion of a trespasser, re-entry on land, abatement of nuisance, etc.

3. Meaning :Damages Award of damages is an ordinary and essential remedy for a tort. In fact, it is available in all cases of torts because tort is a civil injury for which the remedy is by way of an action for damages. Damages, or legal damages is 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. They are paid to a plaintiff to help them recover the loss they have suffered. Damages are the primary remedy in a cause of action for torts. The word “damages” should not be confused with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’. The fundamental principle applied to the assessment of an award of damages is that the claimant should be fully compensated for his loss.

4. Kinds of Damages Nominal Damages Nominal damages are awarded by the court to the plaintiff not by way of compensation but by way of recognition of some legal right of plaintiff which the defendant has infringed, e.g., trespass, assault, invasions of a right of easement, etc. Nominal damages will be awarded where the claimant proves that the defendant has committed a tort but the claimant has suffered no loss. 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. Relevant Case Laws Constantine v. Imperial London hotels ltd. Ashby v. White  (1703) 92 ER 126,

5. II. Contemptuous Damages Contemptuous damages are awarded when it is considered that an action should never have been brought. 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.

6. III . COMPENSATORY DAMAGES Compensatory damages, like the name suggests, are intended to compensate the injured party for loss or injury. 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.

7. IV . 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, humiliation, distress, or embarrassment etc. suffered by the plaintiff, particularly in such torts as assault, false imprisonment, and defamation . Damages, 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.

8. V . EXEMPLARY OR VINDICTIVE DAMAGES OR PUNITIVE Exemplary damages are awarded not to compensate the plaintiff but to punish the defendant and to deter him from doing similar conduct in the future. These are the highest in amount. Punitive damages are awarded when the defendant has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The objective here is to create a public example and make people cautious of not repeating something similar . Relevant Case Laws: Rudal Shah vs. State of Bihar Lucknow Development Authority vs. M. K.Gupta

9. VI. PROSPECTIVE DAMAGES Prospective or Future damages are those damages which are likely to result from the wrongful act of the defendant but they have not actually resulted at the time when the damages are being decided by the Court. Relevant Case Laws: Subhas Chandra vs. Ram Singh Y. S. Kumar vs. Kuldip Singh Hardeep Kaur vs. Union of India

10. Meaning of Injunction An injunction is an order restraining the commission, repetition and continuance of a wrongful act of the defendant. To entitle a party to an injunction he must prove either damage or apprehend damage . An injunction may be granted to prevent waste, trespass, or continuance of nuisance, etc. An injunction can be temporary or permanent, and mandatory or Prohibitory. Let us discuss each of them one by one. Law relating to injunctions is found in the Code of Civil Procedure, 1908 and from Section 37 to Section 42 of the Specific Relief Act (henceforth referred to as the Act), 1963.

11. kinds of Injunction Temporary Injunction Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of time or until the court gives further order regarding the matter in concern. They can be obtained during any stage of the trial and are regulated by the Code of Civil Procedure (CPC), 1908. Permanent Injunction A permanent injunction can be granted by the court by passing a decree made at the hearing and upon the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

12. Mandatory Injunction When the court has asked the party to do something, it is a mandatory injunction. That is, when the court compels a party to perform a certain act so as to bring back the aggrieved party or the plaintiff to the position that he/she was in before the commission of the act of the defendant. For example, the court may ask a party to make available some documents, or to deliver goods, or an order to pull down a wall which causes destruction to the plaintiff’s right of light, etc. Prohibitory Injunction When the court has asked the party to not do something, it is a Prohibitory injunction . The court prohibits a person, or refrains them from doing something that is wrongful. For instance, it may ask the party to remove an object of nuisance or to stop his act of nuisance.

13. Mandatory Injunction When the court has asked the party to do something, it is a mandatory injunction. That is, when the court compels a party to perform a certain act so as to bring back the aggrieved party or the plaintiff to the position that he/she was in before the commission of the act of the defendant. For example, the court may ask a party to make available some documents, or to deliver goods, etc . Prohibitory Injunction When the court has asked the party to not do something, it is a Prohibitory injunction . Prohibitory Injunction forbids the defendant from doing some act which will interfere with the plaintiff’s lawful rights. For instance, restraining the defendant from committing or continuing the acts like trespass or nuisance.

14. specific restitution of property The third kind of judicial remedy is the specific restitution of property . It is granted where the plaintiff has been wrongly dispossessed of his lands and goods. Thus, a person who is wrongfully dispossessed of immovable property, or of some specific movable property, is entitled to recover such property. When one is wrongfully dispossessed of his movable or immovable assets, the court may order that the specific belongings must be restored back to the plaintiff .

15. Extra Judicial Remedies Re-entry on Land A person who has been wrongfully ejected from his land can re-enter his land provided he does it peaceably and without using force . Illustration : A trespasses into the premises of B’s property. B has the right to use reasonable force to remove A and re-enter his property . Re-caption of goods The owner/The aggrieved party of goods is entitled to recapture the goods from any person whose unlawful possession they are in . Illustration : If A unlawfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A.

16. Distress Damage Feasant : The term “ distress ” means a right to detain; “feasant” means an object which has done a wrong; and “ damage ” implies the loss caused to the owner or the occupier. Where the property of the aggrieved party is being damaged or spoiled by another’s cattle or animal. The owner of the property/Aggrieved party has the right to take the possession of the cattle or animal until he is compensated for the losses . Illustration : If A’s cattle enter into B’s Farm and damages his crops, B has the right to take the possession of A’s cattle until he gets a compensation from A for the loss that he suffered due to A’s cattle.

17. Expulsion of trespasser A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are : The person should be entitled to immediate possession of his property. The force used by the owner should be reasonable according to the circumstances. Illustration : A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself . Abatement of Nuisance In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance. Illustration : A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After giving due notice to A, B can himself cut or remove the branches if they’re causing him nuisance.