January 23, 2022

Remedies for Torts: Judicial and Extra – Judicial Remedies

Law of torts

When the aggrieved person is taken back to the position that they were enjoying before their rights were infringed or a tort was committed, they are said to have been provided with a legal remedy. There are various types of legal remedies. For instance, if something that belongs to you has been taken away from you by a party, the court can either ask them to pay you back in money, or ask them to return your belongings as they were, and may also punish the party in some cases.

Remedies for Torts

1- Judicial Remedies: These are the remedies for torts that the courts of law provide to an aggrieved party.

2- Extra judicial Remedies: If the injured party takes the law in their own hand (albeit lawfully), the remedies for torts are called extra-judicial remedies.

Judicial Remedies for Torts

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

1-Damages

2-Injunction

3-Specific Restitution of Property

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’.The fundamental principle applied to the assessment of an award of damages is that the claimant should be fully compensated for his loss. He is entitled to be restored to the position that he would have been in, had the tort not been committed, insofar as this can be done by the payment of money.

Types of Damages

1- Nominal Damages – Nominal damages are those in which even though the plaintiff has suffered a legal injury at the hands of the defendant, there is no actual suffered by him. These damages are provided in the cases of Injuria sine damno in which the Court recognises the violation of the right of the plaintiff but the amount of damages are so nominal or low because of no actual loss to the plaintiff.

In the case of Constantine v. Imperial London Hotels Ltd[1]., The plaintiff was a cricketer from West Indies who had gone to the defendant hotel to stay but he was rejected on the basis of his nationality, therefore, the plaintiff stayed at another hotel and did not suffer any actual damage. In the case brought by him, the defendant was held liable because the plaintiff’s legal right was violated despite no actual injury happening and they had to pay nominal damages of five guineas.

In the case of Ashby v. White (1703) 92 ER 126[2], the plaintiff was prevented from voting by the defendant and the candidate for whom the plaintiff was going to vote still won. The plaintiff sued the defendant. It was held that even though no actual damage was suffered by the plaintiff, the defendant was still liable for preventing him from exercising his legal right to vote and thus nominal damages were awarded in this case.

2- Contempuous Damages– In these type of damages, the Court recognises that the right of the plaintiff is violated but to show that the suit brought by the plaintiff is of such a trivial nature that it has only wasted the time of the Court, the Court awards a meagre amount to the plaintiff as damages. This is similar to the nominal damages but the only difference between the two is that in nominal damages the plaintiff suffers no actual loss and in contemptuous damages, the plaintiff suffers actual damage but it is a trivial one in which he does not deserves to be fully compensated.

Illustration: If A’s dog enters B’s house and relieves himself and B accidentally steps on it and is disgusted and thus, he brings a suit against A, the Court will rule in B’s favour but because of such a trivial nature of this case the damages awarded by the Court will be of a meagre amount.

3. Compensatory Damages –Compensatory damages are awarded to help the plaintiff to reach his original position at which he was before the tort was committed against him. These damages are not awarded to punish the defendant but to restore the plaintiff to his previous situation. These damages are very helpful in cases of monetary losses in which the amount of loss can be easily calculated and therefore that amount can be ordered to be paid to the plaintiff so that he can replace the damaged product or goods with such amount.

Illustration: K takes T’s bike and due to his rash driving the bike gets damaged. Here K can be awarded compensatory damages in which the amount for repairing the bike will be payable to K by T so that the bike’s condition can be restored back to its original state.

4. Aggravated Damages -These damages are awarded for the extra harm which is caused to the plaintiff which cannot be compensated by the compensatory damages and it is given for factors such as the loss of selfesteem, pain and agony suffered by the plaintiff etc. which cannot be calculated in monetary terms. These damages are therefore additional damages which are awarded to the plaintiff other than the damages awarded for his pecuniary loss.

Illustration: A makes false claims against B as a result of which B’s standing in the society is greatly affected and he is also ridiculed by people which leads to him losing his self-confidence and self-esteem. Here Court can award B aggravated damages for the humiliation and loss of confidence because of his suffering which is caused by A’s act.

5. Punitive Damages – These damages are also known as exemplary damages and the purpose of these damages is to punish the defendant and to make an example of him so that others are deterred from committing the same act as he did. Thus, whenever a Court feels that the act of the defendant was severely gross, it awards punitive damages against him to the plaintiff.

Illustration: A company advertises that its pill will help in quick weight loss and is made up of natural ingredients, as a result, the plaintiff purchases it. But due to the pills containing certain chemicals, it makes the plaintiff severely ill. Here the Court can not only allow compensatory damages to the plaintiff but because of the company’s false claims, it can also award punitive damages so that it does not repeat the act again.

6- General and Specific 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.

Remoteness of ‘Damage’

As discussed above, the main aim is to bring the aggrieved party back to the status quo, that is, compensating the plaintiff. As a general rule, damage suffered by the plaintiff should be a direct consequence of the defendant’s act. Any action can have multiple following consequences. A person cannot be held accountable for all the consequences resulting from his act. The remoteness of consequences resulting from a person’s act has been an issue of debate in the Law of Torts over the years. Various tests were developed over time to determine what consequences of an act can a person be held liable for. When there is no cause and effect relationship between the defendant’s act and the injury caused to the plaintiff, the damage is said to be too remote to be compensated.

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)[3]

In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the defendants.  While unloading cargo from the ship, the defendant’s employees accidentally knocked a plank into the ship, which caused a spark to ignite, that resulted in an explosion. The question before the court was, whether the damage due to the explosion was a direct result of the act of the defendant’s employee.

Leisboch Case (Liesbosch Dredger v SS Edison)[4]

In this case, the plaintiff’s dredger was damaged and sunk by the defendants (Edison), due to their negligence. The dredger was working under a contract with the terms that some amount had to be paid if the work was not completed on time. The plaintiff did not have enough funds to arrange a new dredger to complete the said work. They claimed all the resulting damages. The court held that the plaintiff’s own lack of funds cannot be compensated by the defendants.

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.

An injunction is  an order of a court that restrains a person from continuing the commission of a wrongful act, or orders the person to commit a positive act to reverse the results of the wrongful act committed by him, that is, to make good what he has wrongly done. To receive injunction against a party one must prove damage or the possibility of prospective damage (apprehended damage). An injunction can be temporary or permanent, and mandatory or prohibitory. Let us discuss each of them one by one. 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).

Case- M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products[5]

In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery Products for infringement of their trademark on their product ‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the trademark was adopted by them in 1961, and that the defendants had wrongly got themselves registered a copyright similar to them. The court ruled in favour of the plaintiff granting the defendant an interim injunction.

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 for Torts

When a person can lawfully avoid or remedy himself without the intervention of courts, these remedies for torts are called extra-judicial remedies for torts. In this, the parties take the law in their own hands.Extra Judicial Remedies for torts refers to those remedies where an aggrieved person can take such actions that can undo the damage that has happened to him, without the court’s intervention. There are 5 types of extra judicial remedies for torts that are available to people who have suffered from some civil wrong. These include Expulsion of Trespasser, Right of Re-entry on Land, Right of Re-caption of Goods, Abatement of Nuisance and Distress Damage Feasant.

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.

3- Re-caption of goods The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. 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.

5- 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.

Conclusion for Remedies for Torts

In torts, the object behind remedying a party is to take the aggrieved party back to the status or position that they were enjoying before the occurrence of tort. It is not to punish the defendant, as in crime. Remedies for torts can be judicial and extrajudicial. When due process of law is required for a party to gain remedy, and the courts are involved, the remedies are called judicial remedies. When the law is taken in his/her own hands by the parties, they are called extra-judicial remedies.

For more notes on Law of torts, Click Here.

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References

[1]  https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/remedies-of-tort-

[2] https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/remedies-of-tort-

[3] https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/remedies-of-tort-

[4] https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/remedies-of-tort-

[5] https://indiankanoon.org/doc/315836/


Author Details: Rini Rastogi [Student; PSIT College of Law, Kanpur]

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