Remedies in Tort Law

The author Nadeem Siddiqui is a second-year student of B.L.S L.L.B from Government Law College. Mumbai.

INTRODUCTION

The action undertaken by a person to receive compensation or to punish the person who has violated his right is known as ‘legal remedy’. There are different types of legal remedies available. For example, you can get compensation for the damages suffered and the court can also punish the violator while asking them to pay the compensation. In Tort Law, the remedies or reliefs available to an aggrieved person are mainly of two types:

Judicial Remedies
Extra Judicial Remedies

Judicial Remedies

Judicial remedies are the reliefs provided by the courts to the person whose rights are violated. Judicial Remedies are of three types:

Damages
Injunction
Specific Restitution of Property

Extra Judicial Remedies

Extra Judicial Remedies are the reliefs that a person can obtain by himself taking certain actions. Extra judicial remedies are of five types:

Expulsion of Trespasser
Re-entry on Land
Recapture of Goods
Abatement of Nuisance
Distress Damage Feasant

To get a proper understanding of each of these remedies, we need to discuss them in detail. First, we will discuss the judicial remedies in detail followed by extra judicial remedies.

1. Damages

The basic idea behind the concept of damages is to recompense the aggrieved person so that some harm caused due to the violation of his/her rights could be rectified.

General and Special Damages:

Damages which the law presumes to be the natural consequence of the defendant’s acts are general damages, whereas damages the law will not presume/infer unless proved at the trial are special damages.

E.g. Medical expenses incurred by plaintiff due to defendant’s negligent driving will give rise to general damages, whereas if the plaintiff claims nervous shock, then he/she has to prove the claim in order to get special damages.

Types of Damages

Nominal Damages: Nominal damages are awarded by the Court to the plaintiff not as compensation but as a recognition of some legal rights of the plaintiff which the defendant has infringed. In other words, nominal damages are awarded when a person’s legal right is infringed but he/she has not suffered any damage. Nominal damages are available for torts which are actionable per se.

In Ashby v. White, a rightful voter’s right to vote was wrongfully denied at an election, he was awarded damages nominal in nature though the candidate in whose favour he wanted to cast his vote won the election.

Contemptuous Damages: Contemptuous damages are an indication of the Court expressing an opinion on the claim of the plaintiff or showing its disapproval of plaintiff’s conduct in the matter and consequently the amount of money awarded as damages is quite low. They differ from nominal damages as they may be awarded for any tortious act whether actionable per se or not.
Real or Substantial Damages: Damages which are assessed or awarded as compensation for the damage actually suffered by the plaintiff and not simply by way of mere recognition of violation of a legal right are called real or substantial damages.
Exemplary or Punitive Damages: Exemplary damages are awarded when there has been great injury by reason of aggravating circumstances accompanying the wrong. Exemplary damages are awarded not by way of compensation for the plaintiff, but by way of punishment for the defendant. The intent here is to create an example for the public, as the name itself suggests.

In Rookes b. Barnard, the Court laid down that three situations/cases in which exemplary or punitive damages can be awarded. They are as follows:

Oppressive, arbitrary or unconstitutional action by servants of the Government.

E.g. In Bhim Singh v. State of J&K, Bhim Singh, an MLA of J&K was arrested when he was going to attend an assembly session. The Supreme Court considered it to be an appropriate case to award exemplary damages.

Cases where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.

E.g. In Manson v. Associated NewsPapers Ltd., the court held that if a person who is in possession of material which would be defamatory if published, and the person really believes it to be true and still decides to publish it simply because he/she can make a profit from publishing it and he reckons that any damage she might have to pay would be so small that it would be well worth it, then that is a person, and that is the only person, against whom an award of exemplary damages can be made.

Where exemplary damages are expressly authorized by the statue.
Prospective Damages: 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.

In Subhas Chandra v. Ram Singh, appellant was hit by a bus driver. He suffered several injuries resulting in his permanent disability to walk without a surgical show. Because of his disability he could not take employment in certain avenues. The Motor Claims Tribunal awarded hi, compensation amounting to Rs. 3,000 under the heading ‘probable further loss’. The amount of compensation on appeal was increased to Rs. 7000 by the Delhi High Court.

2. Injunctions

An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act. Injunctions are classified in two ways:

Mandatory Injunction:

If the injunction is an order to do an act, it is called a mandatory injunction. For example, an order to remove a structure illegally built by defendant on the plaintiff’s land, order to remove the obstruction violating plaintiff’s right to enter upon his own land.

Prohibitory Injunction:

If the injunction is to forbear from doing an act, it is called a prohibitive injunction. For example, an order not to encroach upon the plaintiff’s property, order not to cause nuisance. It is also called a ‘preventive injunction’, ‘perpetual injunction’ or ‘prohibitory injunction’.

Permanent or Perpetual Injunction:

If the court after going into the matter, finds that the plaintiff is entitled to the relief, the temporary injunction will be replaced by a perpetual/permanent injunction. A perpetual/permanent injunction is a final order and is issued after listening to both parties and after full consideration of the case.

When can perpetual or permanent injunction be granted ?

According to clause 3 of section 38 of the Specific Relief Act, the court may grant a perpetual injunction in the following cases:

Where the defendant is the trustee of the property for the plaintiff;
Where there is absence of an established norm for discerning the actual damage caused, or likely to be caused, by the invasion;
Where the wrongful act is such that recompense in money would not afford sufficient relief;
Where obtaining an injunction is indispensable to prevent a multiplicity of judicial proceedings.

3. Temporary Injunction:

It is also called an ‘interlocutory injunction’ and is granted when the case is pending. Section 37 of the Specific Relief Act, 1963 defines temporary injunction as “A temporary injunction is such as to continue until a specified time, or until the further order of the court”. It does not mean determination in favour of either the plaintiff or the defendant but simply shows the concern of the court that there is a substantial question requiring consideration. It is granted to stop the suffering till the case is in the court.

When can an injunction be refused or not cannot be granted ?

Section 41 of the specific relief act lays down the grounds when an injunction can be refused. As per the section, an injunction cannot be granted –

To prevent any person form prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
To restraint any person from starting any proceeding in a court not subordinate to that form which the injunction is sought;
To restraint any person form applying to any legislative body;
To restraint any person form beginning a proceeding on criminal matter;
To prevent the breach of a contract the execution of which would not be specifically enforced;
To prevent an act which it is not reasonably clear that it will be a nuisance;
To prevent a prolong breach in which the plaintiff has consented;
When equally effective relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
When the behaviour of the plaintiff or his agents has been such as to debar him from the help of the court;
When the personal alleging the harm has no personal interest in the matter

Specific Restitution of Property

When one is wrongfully dispossessed of his movable or immovable property, the court may order that the specific property should be restored back to the plaintiff.

E.g. Action for ejectment, the recovery of chattels by an action for detinue etc.

As per section 6 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed of immovable property is entitled to recover the immovable property.

As per section 7 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed of movable property is entitled to recover the movable property.

Extra Judicial Remedies

1. Expulsion of Trespasser

A person can resort to legitimate force in order to repel an intruder or trespasser provided the force used by him does not transgress the reasonable limits of the occasion i.e. he must not use disproportionate force.

In Scott v. Mathew Brown & Co., the Court held that the rightful owner of property is entitled to use force in ejecting a trespasser so long as he does him no personal injury.

In Edwick v. Hawles, the Court held that, while ejecting a trespasser, the rightful owner of property should not resort to violence.

2. Re-Entry on Land

A man wrongfully disposed of his land may retake its possession, if he can do so in a peaceful manner and without use of force. Section 6 of the Specific Relief Act, 1963 provides that if one in possession of immovable property is disposed of, otherwise than by due course of law, may, within six months, sue to recover possession without reference to any title set up by another, which is left to be determined in a separate action.

3. Recapture of Goods

A person entitled to the immediate possession of chattels may recover them from any person who has been in actual possession and detain them, provided that such possession was wrongful in its inception.

4. Abatement of Nuisance

Abatement means removal of the nuisance by the party injured. It is justiciable provided it must be peaceable, without damage to life or limb and after notice to remove the same, if it is necessary to enter another’s land to abate a nuisance, or where the nuisance is a dwelling house in actual occupation, unless it is unsafe to wait.

5. Distress Damage Feasant

A person who is in possession of a land may impound a cattle/animal which is wrongfully on that land to secure the payment of compensation for damage caused by it.

The basic idea behind the concept of damages, as said initially, is to provide some monetary recompense for the violations suffered as the courts cannot undo an act. The courts have also recognised that it is not enough to reward some compensation for the violation of rights, it is also necessary to give people some power so that they can defend themselves hence the concept of extra-judicial remedies. These are the remedies available in Tort Law.

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