Remedies available under Torts

REMEDIES IN TORTS

Introduction

• When something that a party may have been enjoying is taken away from them by another party, they are said to be “aggrieved.” This is a violation of the aggrieved party’s rights that is treatable by law. One such treatment is a legal remedy. The aggrieved individual is considered to have been provided with a legal remedy when their rights were infringed and they were returned to their previous status.

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:

• Damages
• Injunction
• Specific Restitution of Property

Damages:

• The amount of money paid to the aggrieved person to put them back in the position they were in before the tort happened is known as damages, or legal damages.
• They are awarded to a plaintiff in order to assist them in recouping their losses.
• Damages are the most common form of redress in tort cases.
• The word “damages” should not be confused with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.

Types of damages:

Contemptuous damages are also called ignominious damages. The amount of money awarded by the court in this case is extremely low, demonstrating the court’s displeasure, that is, when the plaintiff is at fault and cannot be claimed to be entirely “aggrieved.”

Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been caused to him.

Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss suffered by him due to the tort.

Punitive damages are granted when the defendant has been extremely ignorant of the plaintiff’s rights and has suffered significant harm.

The goal is to set a public example and warn people against doing anything similar in the future. These are the highest in amount.

• Special damages are paid when a special loss can be demonstrated. There is no one-size-fits-all formula for calculating the actual amount. The plaintiff only needs to show that he or she has suffered a loss.
• There is no numerical method for calculating damages. To determine the damages, a number of elements, including the facts and circumstances of each case, must be considered. As a result, damages are granted at the court’s discretion.
• The remoteness of consequences emanating from a person’s behaviour has long been a point of contention in tort law. Over time, several standards have been established to evaluate what effects a person can be held accountable for. The damage is deemed to be too remote to be paid when there is no cause and effect relationship between the defendant’s act and the injury caused to the plaintiff.

Cases:

• McLoughlin v O’Brian
• Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai
• Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)
• Leisboch Case (Liesbosch Dredger v SS Edison)
• Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)

Injunction:

• Injunctions are equitable remedies available in torts that are awarded at the court’s discretion.
• Instead of compensating the offended person, an equitable remedy requires the other party to fulfil his side of the promises.
• When a court orders a person to stop doing something or to do something positive in order to compensate the aggrieved party for their losses, the court is issuing an injunction.
• An injunction is a court order that prohibits a person from continuing to perform a wrongful act or requires the person to take a positive action to reverse the consequences of the wrongful conduct he committed, i.e., to make good on what he has wrongfully done.
• To get an injunction against a party, one must show that the party has caused or is likely to cause harm (apprehended damage).
• A temporary or permanent injunction can be mandatory or prohibitive.
• Any individual, group, or even the state can be sued for an injunction.
• There are two types of injunctions, according to Section 37 of the Specific Relief Act: temporary and perpetual injunctions (permanent).

Temporary injunctions:

• During the pendency of a case, a temporary or interlocutory injunction is granted to protect the status quo and prevent additional harm until the court issues a decision. It stops the defendant from continuing or repeating the breach he was committing previously.
• During the court procedures, a temporary injunction is given to prevent the party from suffering damages.
• They can be awarded at any point during the case’s duration.
• An injunction can be requested by either of the parties. Rule 1 and 2 of Order XXXIX (39) of the Code of Civil Procedure give the court the authority to issue an interim injunction.
• When granting a temporary injunction, certain principles are kept in mind:
  • 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)

In any of the following situations, a temporary injunction may be granted:

• If the government is preventing a party from undertaking a valid act or enjoying his rights freely, an injunction might be granted in favour of the party and against the government.
• An injunction can be granted under Section 80 of the CPC against an act committed by a government/public officer acting in his official position.
• When one of the parties is in danger of damaging or wasting the property in question.
• In cases of tenancy. A plaintiff who has been wrongfully evicted as a tenant, that is, without following the proper legal procedures, may obtain an injunction against his or her landlords.
• In the instance of a continuous nuisance, the defendant is urged to cease his nuisance behaviour so that the plaintiff is not harmed further while the issue is being decided.
• In cases of trademark infringement, copyright infringement, etc.

Permanent injunction

After the court has heard both sides of the issue and made a decision, a perpetual or permanent injunction is granted. Because it is a court order, it is final and indefinitely applicable. That is, the defendant is either unable to repeat his unlawful act or is required to perform a positive deed in perpetuity.

Cases in which a permanent injunction is issued:

• To avoid multiplicity of judicial proceedings.
• When damages do not adequately compensate the plaintiff.
• When the actual damage cannot be ascertained.

It is a mandatory injunction when the court has ordered the party to do something. That is, when the court orders a party to perform a specific act in order to restore the aggrieved party or plaintiff to the position in which he or she was prior to the defendant’s act.

A prohibitory injunction is issued when the court orders a party to refrain from doing something. The court forbids or restrains a person from doing something that is illegal.

According to Section 41 of the Specific Relief Act, injunctions may not be obtained in certain circumstances:

• To stop a person from filing a case in the same court in which the injunction suit is sought, unless such an injunction is being asked for, to prevent a multiplicity of proceedings.
• To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the one in which injunction is being sought.
• To prevent a person from applying to any legislative body
• To restrain a person from filing or fighting a criminal case
• To prevent the breach of contract, performance of which is not enforced specifically
• To prevent an act that is not a clear act of nuisance
• To prevent a continuing breach in which the plaintiff has himself acquiesced
• When an equally effective relief can be obtained in any other way or through any other sort of proceeding
• When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from the assistance of the court.
• When the plaintiff has no personal interest in the said matter.

The period of limitation for filing an injunction suit, according to Article 58 of the Limitation Act of 1963, is three years from when the “right to sue first accrues,” that is, when the right to bring the action begins, not when the action itself begins.

Cases:

• Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan Chettiar
• M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products

Specific Restitution of Property is the third judicial remedy accessible under Tort Law. Restitution refers to returning property to its rightful owner. When a person’s property or possessions are illegally taken from him, he has the right to have them returned to him.

Extra-Judicial Remedies

Extra-judicial remedies are used when a person can lawfully prevent or remedy a situation without the intervention of the courts. In this case, the parties assume control of the law.

These are of five main types:

• Expulsion of trespasser: A trespasser can be expelled from a person’s property with a fair level of force. The following are the two requirements:
  • The person should be able to take possession of his property immediately.
  • According to the circumstances, the owner’s use of force should be justified.
• Re-entry on land: A property owner can remove a trespasser and re-enter his property by using only a reasonable degree of force.
• Re-caption of goods: The owner of goods has the right to reclaim his or her property from anyone in unauthorised possession of it. Re-caption of commodities differs from specific restitution in that it is an extra-judicial remedy in which the person does not need to go to court for help and instead takes control of the law.
• Abatement : In the event of a nuisance, whether private or public, a person (the injured party) has the right to have the nuisance object removed.
• Distress Damage Peasant: When a person’s cattle or other beasts wander onto another’s property and destroy his crops, the property owner has the right to seize ownership of the beasts until he is reimbursed for his loss.

Author: SAMEER AFZAL ANSARI,
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY , THIRD YEAR