TORTS : REMEDIES IN TORT LAW
Unlike other law, tort does not have any prefixed remedy.
ISSUES TO BE DECIDED BY COURT BEFORE AWARDING SUCH REMEDY : Plaintiff affected by consequential defendant's wrongful act ; such damage should not be too remote ; appropriate relief to be given.
JUDICIAL REMEDIES
What are judicial remedies ? Remedies available to a plaintiff through a court of law are judicial remedies. To seek judicial remedy the victim must file a suit in civil court.
R1 : DAMAGES
Damages: Damages are primary remedy in an action for tort. Damages not only operates as a satisfaction to the plaintiff but also is a punishment to the defendant .
a)What are damages in tort law mean ? 'Damages' for the purpose of law of torts means pecuniary sum which the plaintiff claims from the defendant for the tort committed by him.
b)What is legal definition of damages ? Damages as a pecuniary sum which is awarded to plaintiff who succeeds in an action for tort or breach of contract
c)What is the nature of such damage ? Damages are always unliquidated.
d)What is meant by unliquidated damages ? They are not pre-determined and the quantum of damages is decided by the Court at every instance of a case.
e)What are the criterion to fix damage ? Court generally takes into considerations the following facts:-
1.Graveness of the damage caused
2.Extent of loss caused to plaintiff
3.Nature of tort committed by defendant
4.Extent of malice in the tort committed
5.Whether defendant is habitual tort feasor
The damages to be paid are not fixed for all cases, depending upon the tort committed the damages awarded are of various types and they are as follows:
Nominal damages are damages which are minimal in amount say in single rupee or paise : to serve as warning to the tort feasor ; generally awarded for injuria sine damnum ( infringement of legal right without loss)
CONTEMPTOUS DAMAGES
Trivial amount of compensation when there is violation of right and also suffer loss.
Nominal damages Contemptuous damages
Nominal damages are awarded when contemptuous damages are awarded when the plaintiff has
the plaintiff has suffered no loss suffered some loss but he does not deserve to be fully
compensated.
COMPENSATORY, AGGRAVATED AND EXEMPLARY DAMAGES
a)What is compensatory damage ? Amount equal to loss suffered is given. This is the basic idea of all civil law.
COMPENSATION AMOUNT = LOSS SUFFERED
Purpose of compensatory damage : To make good the loss inflicted.
b)What is aggravated damages ? Compensation amount more than injury/loss suffered is given for increased amount of damages.
c)What are exemplary damages ? Damages awarded in excess of the material loss suffered by the plaintiff with a view to prevent similar behavior in future the damages are known as exemplary, punitive or vindictive.
Purpose of exemplary damages : Such damages are not compensatory in nature, they are aimed to punish the defendant.
Prospective Damages or Future Damages
Means compensation for damage, which is quite likely result of the defendant's wrongful act but which has not actually resulted at the time of the decision of the case.
HOW CAN WE DETERMINE THE COMPENSATION FOR PERSONAL INJURIES>
The task of determining the amount of compensation for personal injuries is difficult.
Personal injuries may be of two kinds:
1.Non-pecuniary loss, and
2.Pecuniary loss.
Non-pecuniary loss includes the following heads of damages –
1.Pain and suffering
2.Loss of amenities, and
3.Loss of expectations of life
Pecuniary loss includes the following heads of damages-
1.Consequential expenses
2.Cost of care
3.Loss of earnings
There is no universal rule for determination of amount of damages. It will be determined on the basis of facts and circumstances of each case.
Interest on Damages: rate of 12% from the date of filling of the suit which is payable on the total amount of compensation.
R.2 : INJUNCTION
1.What is an Injunction? It is an order of the court directing the doing of some act or restraining the commission or continuance of some act. It is discretion of the court.
Provided under Sec. 36, 37, 38, 39, 40, 41 of the Specific Relief Act, 1963.
TYPES OF INJUNCTION :
6.Temporary Injunction : It is only provisional, temporary ; continues until the case is heard on its merits or until further order of court.
7.Perpetual Injunction : It means permanent i.e. the order remains operational permanently.
8.Prohibitory Injunction : Forbids the defendant from doing some act.
9.Mandatory Injunction : Order which requires the defendant to do some positive act.
R3 :SPECIFIC RESTITUTION OF PROPERTY
Plaintiff has been wrongfully dispossessed of his movable or immovable property; the court may order that specific property should be restored back to the plaintiff. e.g. in case of wrongful possession of land ejectment. This is provided under sec. 5, 7 of the Specific Relief Act 1963.
EXTRA-JUDICIAL REMEDIES :
INTRODUCTION :
Apart from the above remedies of damages, injunction and Specific restitution of property, a person has certain remedies available to him outside the court of law. These remedies are therefore known as extra-judicial remedies, that is, they can be resorted to by the person’s own strength by way of self-help.
1.SELF-HELP :
One can use reasonable forces to protect him against any wrongful act of another in proportion to the danger or injury sought to be prevented.
Right to self-help includes the right to protection of one’s own body, members of his family servant and master, protection of property etc.
2. RE-ENTRY ON LAND
A person who has been dispossessed of his land wrongfully can re-enter his land and take its possession. He can use necessary force for this purpose provided it is done peacefully.
3. EXPULSION OF TRESPASSER
Every person has a right to expel a trespasser from his land. He can also use necessary force to expel the trespasser, but the use of force the trespasser should be asked to leave the land and be given an opportunity to leave the Land. This right can be used in both situations prior to the entry of the trespasser on the land or after the entry.
4. RECEPTION OF GOODS:
If a person is dispossessed of his chattels or animals wrongfully, he is entitled to repossess them. In exercise of his right he can enter upon the land of another and it will not amount to trespass.
5. ABATEMENT OF NUISANCE
If some nuisance is done or continues on a person’s land, then he is entitled to abate or remove the nuisance.
EQUITABLE REMEDIES
Equitable Remedies: These are available where monetary damages will not adequately restore the victim to wholeness. These can include:
Temporary Restraining Order: Victims of physical harm or harassment may obtain a restraining order, which prevents the defendant from making contact with or coming near to the plaintiff.
Temporary or Permanent Injunction: An injunction may either prohibit unlawful activity by the defendant or it may order them to take affirmative steps. Injunctions are common in trespassing and nuisance tort claims.
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