Remedies in Torts

Remedies in Torts (Introduction) –Remedies for Tort are of two kinds-

1) Judicial

2) Extra Judicial

Judicial Remedies refers to those remedies that are afforded by the law and a person has to approach the Court of Law in order to obtain such remedies. These are of the following kinds-

1) Avoiding of Damages/ Compensation

2) Grant of Injunction Orders

3) Restitution of Property (Restore)

Extra Judicial Remedies are those which are available to a person by his own act alone and not by the court of law. Following are the kinds of Extra Judicial Remedies-

a) Re-Entry on the Land

b) Re-Caption of Chattel

c) Abatement of Nuisance

Judicial Remedies-

Damages are one of the most important remedies which the plaintiff can avail when a tort of injury is committed against him. Damages refer to a pecuniary compensation which the law awards to a person for the injury that he has sustained by the wrongful act of the other person. Damages may be of two kinds-

1) Nominal Damages- When there is an infringement of the plaintiff’s right by causing him injury but he has not suffered any loss, the law awards him nominal damages in recognition of his rights.

2) Contemptuous Damages- These are the damages which are awarded when it is spelt that an action should never have been brought before the court. The amount that is awarded is very low because the court forms an opinion that the plaintiff does not deserve to be fully compensated even though he has suffered great loss because the court finds no moral justification for it.

3) Ordinary Damages- Ordinary Damages refers to the simple damages that are awarded by the court depending upon the facts and circumstances of every case and also depending upon the amount of harm or injury that has been suffered by the plaintiff.

4) Special Damages- Special Damages are those damages that are claimed on certain special losses or express losses in special circumstances. These damages are not inferred by the court from the law established but only from special circumstances of each case.

a) Injunction- An injunction refers to an order of a court restraining the commission, reputation or continuance of a Wrongful Act of the Defendant. According to Law of Tort, a party in order to be entitled to injunction order must prove damage for the injury caused to him. An injunction may be granted by the Court to prevent trespass, or the Continuance of nuisance to dwelling house etc. Injunction may be of many kinds –

1) Mandatory Injunction– It refers to the injunction order by the court which is valid for a long period of time and it is mandatory in nature. The injunction order shall be mandatorily followed by the person against whom it has been issued.

2) Temporary Injunction- Injunction refers to an injunction of order that is temporary in nature and is granted for a specified period of time or until the further orders of the Court.

3) Prohibitory Injunctions- This kind of injunction forbids the defendant from doing some act which will interfere with the plaintiff’s lawful right.

b) Restitution of Property- When the plaintiff has been wrongfully disposed of his movable or immovable property, the court may order that the specific property shall be restored back to the plaintiff. Recovery of land and recovery of chattels shall be made an action and filed before the Court to obtain restitution orders by the Court.

Extra Judicial Remedies

Extra Judicial Remedies refers to those remedies which are adopted by the parties themselves for the redress of their grievances without going to the Court of Law. These are mainly four types of rights-

a) Right of Reentry of Land- A person who has been wrongfully ejected from his land has a right and subsequently can re-enter his land provided that he does so peacefully and without using any kind of force or violence against anyone.

b) Right of Re Caption to Chattels– If a person takes away a fountain pen from A’s pocket and runs with it, A has a right to run after him, C’s enforce ably takes back fountain pen from that person. Therefore, this may be referred to as right of re-caption for which there does not exist any civil or criminal action but it is important that the plaintiff must use only a reasonable degree of force that is necessary to take back the chattels. If the wrongdoer has kept the movable property in his house the plaintiff has the right to enter his property and take back his movable property, he does not have any right to re-enter the wrongful person’s property again.

3) Abatement of Nuisance– As a general rule everyone who is damaged by a private nuisance has a right to abated or remove it. A man may enter upon his neighbor’s land and is entitled to remove that nuisance. The abatement of nuisance is a remedy which is not favored by law and is usually not advisable to people because it may lead to breach of peace or means of doing irreparable damage.  

4) Expulsion of Trespasser– A person can use a reasonable amount of force to expel a trespasser from his property.

In any case, the parties abating a nuisance must be careful not to interfere with the property of the wrongdoer in excess of what is only necessary to abate or to remove the nuisance. If there are any possible changes of alternate method to remove the nuisance then such methods must be adopted by the plaintiff in order to reduce any kind of harm or injuries to the parties.

Causation

The defendant is liable for any damage which is the direct consequence of his unlawful act, whether he intended the consequence or not, and whether he could have reasonably foreseen it or not. This view was just upheld in Smith vs L and S W Railway. In this case, during a very dry summer, the Railway Company’s Servants cut the grass and trimmed the hedge bordering the railway line and left the trims and cuttings between line and hedge. A fire caused by sparks from a railway engine ignited these heaps and spread over to a neighboring field and a high wind carried the fire to plaintiff’s cottage, about 200 yards from the spot where the fire began. Defendants argued that no reasonable man could have foreseen the consequence but they were held liable as the burning of the cottage was the direct consequence of the act of the defendants. This view was adopted by the Court of Appeal in Re Polemis and Furness Withy and Co Ltd . In this case a ship was hired under a charter which exempted both the ship other cargo. During the voyage, the tins containing benzene leaked and there was a lot of vapor in the hold. While shifting the cargo at a port of call, servants of the charterer negligently let a plank drop, into the hold which caused fire and the ship was totally destroyed. The Court of Appeal adopted the direct consequences test and defendants were held liable for the loss of ship.

Mitigation of Damage

An injured person cannot claim damages for any loss which he could have avoided by taking reasonable steps. If a person aggravates his injury by refusing to take treatment, he cannot recover for the aggravation.

In Selvanayagam vs. University of W Indies, the Privy Council laid down that if a plaintiff in an action for damages for personal injuries of surgery must, in order to discharge the burden on him of proving that he acted reasonably in regard to his duty to mitigate his damage prove that in all the circumstances including in particular the medical advice he acted reasonably in refusing surgery.

There are number of other examples and only some of them are discussed here. In Venderburg vs. Traux, the defendant took up a pick-axe and chased the plaintiff’s servant boy, who rushed for shelter into his master’s shop and in doing so he knocked a faucet from a cask of wine spilled and was lost, the defendant was held liable for the loss of wine.

Measures of Damages

The expression ‘measure of damages’ means the scale or rule by reference to which the amount of damages is to be recovered, in any given case, to be assessed. Damages may rise to almost any amount, or they may dwindle down to a nominal figure. The law has not laid what shall be the measure of damages in actions for tort; the measure is vague and uncertain, depending upon a vast variety of causes, facts and circumstances.

The Supreme Court has held that where an employee dies in an accident, appropriate multiplier should be applied for measuring damages. Where the deceased was a 46 years old bank employee and the total loss of dependency was found to be only Rs. 4000/- per month after deduction of 1/3rd of that amount, the Supreme Court held that the multiplier of 12 ought to have been applied by the High Court as 14 years of service were still left on the basis of superannuation age of 60 years of the deceased.

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