REMEDIES IN LAW OF TORTS

A party is said to be ‘aggrieved’ when something that they may have been enjoying has been taken away from them by another party. This is an infringement of a party’s rights and it is treatable by law.
A legal remedy is one such treatment. When the aggrieved person is taken back to the position that they were enjoying before their rights were infringed, they are said to have been provided with a legal remedy.
There are various types of legal remedies:
Judicial Remedies

As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies are of three main types:

1)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’.
Types of damages
Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be compensated or the defendant has to be ‘punished’, there are 4 types of damages:
Injunction
Specific Restitution of Property

Contemptuous–

contemptuous damages are also called ignominious damages. The amount of money awarded by the court in this case is very low, as to show the court’s disapproval, that is, when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’.


Nominal–

Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been caused to him. For example, in cases of trespass, when damage has not been caused, a legal right is still infringed. Here, the objective is not to compensate the plaintiff.
Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss suffered by him due to the tort.

Exemplary/Punitive–

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.


Compensatory’ damages

are sometimes referred to as regular damages. By allowing him cash reward equal to the injury sustained by him, ordinary damages are awarded to compensate the wounded person equally. Aggravated damages are awarded where, on account of the manner of commission of a tort, the judge raises the damages.

GENERAL AND SPECIAL DAMAGES

When there is a direct link between the defendant’s wrongful act and the loss suffered by the plaintiff. For instance, a person A, due to his negligence, collides his car with a person B, who has a rare bone condition. In this case, the actual damage suffered by the plaintiff will be compensated, not taking into account the rare bone condition of the plaintiff. General damages are ascertained by calculating the amount of actual loss suffered by the plaintiff. For e.g, physical pain and loss caused due to it, or if the quality of life of the plaintiff is lowered.
Special damages are awarded by proving special loss. There is no straitjacket formula to derive the actual amount. The plaintiff just has to prove the loss suffered by him/her. For e.g., medical expense, loss of wage (prospective), repair or replacement of lost or damaged goods/property.

2)Injunction

Injunction is an equitable remedy available in torts, granted at the discretion of the court. An equitable remedy is one in which the court, instead of compensating the aggrieved party,asks the other party to perform his part of the promises. So, when a court asks a person to not continue to do something, or to do something positive so as to recover the damage of the aggrieved party, the court is granting an injunction. A very simple example is that of a court ordering a company of builders to build on a land near a hospital, for the construction sounds may be creating a nuisance to the hospital.

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.
A suit of injunction can be filed against any individual, group or even the State.
According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual (permanent).
Temporary Injunction- A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the status quo and avoid further damage until the court passes a decree. It prevents the defendant from continuing or repeating the breach that he had been doing. A temporary injunction is granted to prevent the party from suffering through the damages during the court proceedings.

The power to grant a temporary injunction is derived from Rule 1 and 2 of Order XXXIX (39) of the Code of Civil Procedure. Certain principles are kept in mind while granting a temporary injunction:
There has to be a prima facie case.
A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)
There has to be an irretrievable damage. (The damage has to be such that cannot be compensated for, in money)
Example- When the property in dispute is in danger of being damaged or wasted by either of the parties.,In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance so as to prevent further damage to the plaintiff while the case is being decided., In cases of trademark, copyright infringement, etc.

Permanent Injunction- A perpetual or permanent injunction is granted after the court has heard the case from both sides and passes a decree. Here, since it is a court decree, it is final and perpetually applicable. That is, the defendant cannot continue his wrongful act, or has to do a positive act for perpetuity.
Cases in which permanent injunction is granted
To avoid multiplicity of judicial proceedings.
When damages do not adequately compensate the plaintiff.
When the actual damage cannot be ascertained.

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.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.

3)Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the restoration of his property.

Extra-judicial Remedies

On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-judicial remedies. These are of five main types:
Expulsion of trespasser

When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-judicial remedies. In this, the parties take the law in their own hands. Some examples are:


1)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.


2)Re-entry on land

The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of force only.Re-caption of goods- The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in.

3)Re-caption of goods

is different from specific restitution in that it is an extra-judicial remedy, in which the person need not ask the court for assistance, instead, takes the law in his own hands.
Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A.

4)Abatement-

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.

Distress Damage Feasant-

Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him.

Aishwarya Says:

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