Remedies for Torts
There are two types of remedies for torts:
1. Judicial Remedies
2. Extrajudicial Remedies
Judicial Remedies –
These are the remedies that every person gets according to the law. Damaged parties can get these remedies by filing a claim in court. Judicial remedies can be divided into three parts-
- Specific restitution of property.
Extra – judicial Remedies –
Under this, those remedies are included which are not related to law and the injured person himself adopts them. It includes the following types of measures-
Judicial remedies –
1. Damages – This remedy is accessible in almost all cases of tort because the definition of tort itself states that tort is a civil injury whose remedy is a claim of damages. The object is to bring the injured person to the same condition in which he was immediately before the injury.
Distinctions of Damage- Damage is divided into 6 parts.
1. Contemptuous damages- The Court inflicts this damage when it thinks that the trial should not have been done, that is, although the plaintiff has suffered damages, he is not entitled to damages because of his own fault. This damage is an indication that the plaintiff’s claim is too weak.
For example, if the defendant has struck a blow at the plaintiff because of his use of provocative words, the plaintiff will be entitled to contemptuous damages. Often the amount of contempt damages is very small.
The difference between ‘contemptuous’ and “nominal’ damages is that nominal damages is awarded without causing any actual damage to the plaintiff, whereas contemptuous damages is awarded because the plaintiff has suffered some damage. But in the eyes of the court the loss is so small that it is not eligible for compensation.
2. Nominal damages – This damage is payable in such a case when the legal right of the plaintiff has been violated, but he has not suffered any pecuniary loss. Here the court accepts the existence of a legal right of the plaintiff and considers its violation to be justifiable, even if the plaintiff has not suffered pecuniary injury. The same damages are generally awarded in cases of “Injuria sine damnum”.
3. Real or substanial damages – This is the damage which is given as compensation for the real damage caused to the plaintiff and not for the existence of a legal right. In this, the court provides such amount as fair and just compensation, which is necessary from the point of view of justice to compensate for the actual damage of the plaintiff. It is also called ordinary or compensatory damages. Such damages are usually paid in cases of tort.
4. Compensatory or Exemplary damages—
Compensatory damages are awarded by measuring the real damage, and for example, where the damage is great and where the torts are done intentionally or with malice. Expressing anger towards the behavior of the defendant, a large sum of money is awarded as damages, as he has not given any importance to the right of the plaintiff. The rancorous feeling and harsh behavior of the defendent lead the court to award such damages. It is said that exemplary damage is awarded not to compensate the plaintiff but to punish the defendant. The purpose of exemplary damages is to prevent other persons from doing such harm, such damages are also called exemplary damages or punitive damages.
According to Salmond, such damage is done not as compensation to the plaintiff but to provide consolation to the hurt caused to his feelings and honour. Its purpose is not to compensate the plaintiff but to punish the defendant and to warn and set an example for other persons so that they do not repeat such malicious, careless acts in future.
Punitive damages can now be awarded only in three types of cases,
(i) in illegal, arbitrary or painful acts of Government servants.
(ii) in acts where the defendant’s conduct is for his own benefit which is substantially greater than the compensation to be paid to the plaintiff.
(iii) where by any Act or Statute there is a provision for giving exemplary damages.
The purpose of this damage is that the defendant may not take such advantage from his tort that the compensation paid to the plaintiff is nothing in comparison to that benefit. For example, if someone has a libel, the facts of which he considers to be false, and knowing that if they are published, he will be of such great advantage that any compensation he may have to pay If it is much less than the profit received, then in that case the court should order punitive damages.
5.Anticipatory (prospective) and ongoing ( continuing) damages
Anticipatory damages are those that result from the tortuous act of the defendant, but which do not arise until the time the court decides to damage.
Under this head, damages are provided for shortfall in anticipated life span.
Continuing damage is different from the anticipatory ( prospective) damage – The reason for the argument remains constant. A separate suit can be filed for the same damages each time. Since in ongoing ( continuing) damages the defendant repeats the same tort repeatedly and over and over again, it remains a cause of action.
For example, in false imprisonment or confiscation, the cause of action in continues as long as the plaintiff is locked up or the defendant’s land is in possession of the plaintiff. Similarly, if a nuisance has been tortuous, then because of its continuous occurrence, a new cause of litigation continues to arise.
6.General and special damages –
General damages is the natural consequence of the defendant’s actions presumptive by law, whereas special damages are not recognized by law unless it is specifically proved before the court. It is not necessary that the general damages should be explicitly stated in the plaintiff’s plea, whereas the special damages must be clearly mentioned in the plaintiff’s plea so that the defendant may have proper knowledge of the claim, otherwise the plaintiff would not be entitled to Present evidence of any particular damages.
Example- In falsification, a claim of simple damages would be called for inconvenience, humiliation and suffering received, which the law envisions.
But if the plaintiff has incurred medical expenses or attorney’s fees because of the detention or has suffered any special pecuniary loss, such as a livelihood, then he amounts to special damages, which should be clearly stated in the suit otherwise. In return, he cannot get compensation. In the case of special damages, the court considers many things. Several aspects of damage, such as physical injury, loss and suffering, loss of life expectancy, loss of facilities, etc., are considered.
Rules for determining the amount of damages
How the amount of damages will be determined, it is decided by the court itself and the burden of proof lies on the plaintiff to best prove his damages. Often the court sees that the amount of compensation should be given to the plaintiff to compensate for the damage caused to the plaintiff. In case of personal calamity, the injured person is entitled to get damages under the following heads.
- Lack of income or lack of earning power.
- Medical or other expenses,
- Pain, distress and trauma,
- Loss of hope of survival.
Rule of double action
More than one case cannot be tried for the same cause of action, so all the damages arising out of the same cause must be recovered at the same time. The principle is that if a person is allowed to divide his cause of action into several parts, then since each case can have many causes, the cases will become many and the absurdity will not end.
Exception to the rule of double action
Where there are two causes of action, litigation can be made in each respect. According to Salmond this happens in the following situations:
- When the same act infringes on two different rights.
- When the defendant has infringed the same right by two different acts.
- When the cause of action is in progress.
- When the same work causes damage at different times.
Another remedy for tort is injunction. An injunction is a remedy based on the discretion of the court and cannot be claimed from the court as a right. This remedy is not ordinarily granted in cases in which, in the opinion of the Court, damages is considered appropriate remedy. Although, being a remedy based on discretion, it can be given in any kind of tort, but generally this remedy is given in the tort of libel, nuisance, constant trespass, copyright. The court can forbid a defendant from doing, continuing and repeating any illegal act and can order any legal act to be done. When the court forbids to do any act then it is called prohibitory injuction and when the court orders to do any act then it is called mandatory injuction.
An injunction is usually a supplement to a remedy for damages which is given by order of a court in cases in which the damages are not sufficient. The rules related to injunction in India are provided in sections 37 and 53 to 59 of the Specific Relief Act. Courts can issue injunctions in the circumstances specified in these sections.
The following injunctions may be issued in accordance with this Act-
- Prohibitory and
3. Return of property
The third remedy for tort is the return of the property. A person has the right to recover his immovable or movable property when he is unlawfully dispossessed of immovable or movable property.
In India there are provisions in this regard in the ninth and tenth sections of the Special Relief Act.
EXTRA – JUDICIAL REMEDIES
These are the measures in which the injured person takes justice into his own hands to avoid the tort. There are many such cases when the law gives complete freedom to the individual to defend his legal rights. Everyone has the right to self-defense against the aggressor. We use these remedies in the following ways-
1. Self Defense – Everyone has the right to defend himself by use of force against him against illegal use of force. But the amount of force used for self-defense should not exceed the potential damage and necessity. The right to self-defense also includes the right to self-help. This right includes the right to protect one’s own body, to protect family members, to protect master and servant, to protect property.
2. Expulsion of the trespasser – Every person has the right to remove the trespasser. This right can be exercised only by the person who has physical possession of the property. A person entitled to immediate possession of immovable property can take possession from the person who has encroached upon it. What is needed is that the power used to extract it is reasonable and within limits.
3. Re-entry on land- A person wrongly evicted from his property can get his possession peacefully.
4. Reception of goods – If any movable property of any person has been unlawfully confiscated or taken away, such person may, by exercise of reasonable power and in a peaceful manner, defend his possession or reclaim such property. Provided that the right of the person withholding such restraint to the property and his conduct must be unlawful and unreasonable.
5. Abatement of Nuisance – Nuisance or constraints are of two types – public and personal. In some cases, the on the land of any person, he has the right to terminate the nuisance so that his land is not injuriously affected by the nuisance. It is not mandatory to take recourse to law in doing so, but person affected by them can overcome them by using limited power. If any nuisance has arisen in removing thenuisance 1. No unnecessary harm should be caused to any other person. 2. The measures used for mitigation should be in a peaceful manner.
Other person’s land can also be visited if necessary to mitigate nuisance. The right to go to another’s land is also available in case of emergency. If public nuisance is causing any particular injury to any person, then he can also terminate it. Generally, for removal of nuisance, before going to another’s land, it is necessary to request the owner to remove the nuisance by notice and failing that the nuisance can be terminated by going to his land.
6.Distress damage feasant – If the elements doing wrongful acts cause damage to the owner of any property by coming on that property, then its owner has the right to keep such elements in check. According to the earlier law, where the owner of the land found any animal on his land or any person’s animals came on his land unauthorizedly and caused harm, he had the right to hold or detain them until The owner of the animal should not give compensation for its damage. In Indian law, such cases come under Cattle Trespass Act, 1871.