Remedies

Question

1) Illustrate the Judicial and Extra- Judicial remedies available under Law of Torts. X5

Answer

Remedy means to achieve justice in any matter in which legal rights are involved. Remedies may
be ordered by the court, granted by judgment after trial or hearing, by agreement (settlement)
between the person claiming harm and the person he/she believes has caused it, and by the
automatic operation of law. Some remedies require that certain acts be performed or prohibited
(originally called "equity"), others involve payment of money to cover loss due to injury or
breach of contract, and still others require a court's declaration of the rights of the parties and an
order to honor them. An "extraordinary remedy" is a means employed by a judge to meet
particular problems, such as appointment of a referee, master or receiver to investigate, report or
take charge of property. A "provisional remedy," is a temporary solution to hold matters in status
quo pending a final decision or an attempt to see if the remedy will work.

Concept of remedies in the law of torts is formulated from the maxim ubi jusi bi remedium,
which means there is no wrong without a remedy.

In the case of

Ashby

v.

White

(1703)

Justice Holt remarked, if a man has a right, he

must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the
exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy;
want of right and want of remedy are reciprocal. This explanation was slightly modified to give
it a better stance by observing, Where there is no legal remedy, there is no legal wrong.

In India, there is no legal remedy for the breach of a promise, which is made without any lawful
consideration. The law of remedies is concerned with the character and extent of relief to which
an individual who has brought a legal action is entitled once the appropriate court procedure has
been followed, and the individual has established that he or she has a substantive right that has
been infringed by the defendant. The main remedy against tortious loss is compensation in
'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as
reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the
case of a continuing tort, or even where harm is merely threatened, the courts will sometimes
grant an injunction. This means a command, for something other than money by the court, such
as restraining the continuance or threat of harm.

KINDS OF REMEDIES

The Remedies available to a person who is victim of tort are of two kinds:-I.

Judicial Remedies

Extra-judicial Remedies.

I. JUDICIAL REMEDIES

Judicial remedies mean the remedies available to the victim of a tort in a court of law. The
person against whom a tort has been committed may take recourse to law and seek his remedy in
a court by bringing a suit. Judicial remedies are of three kinds-

a) Damages
b) Injunction
c) Specific Restitution of Property

a. DAMAGES

Damages are primary remedy in an action for tort. Damages are the pecuniary compensation
which is given to a person for the injury he suffers for the infringement of his rights. If a person
sustain injury by the wrongful act of another, he may bring a suit for damages in a court, and the
court after being satisfied that his legal rights has been infringed by the defendants, may award
damages to the plaintiff. Damages are confined to the loss which the plaintiff has actually
suffered and are designed not only as a satisfaction to the plaintiff but also is a punishment to the
defendant wrongdoer to teach him a lesson so he may not repeat such acts in future. But it should
be noted that the defendant is liable for that damage only which is the direct result of his
wrongful act. It is immaterial whether the defendant intended the consequences or not, and
whether he could reasonably forsee it or not. In every case when the plaintiff files a suit for relief
the damages are recoverable only if they are the direct consequences of the act. No hard and fast
rule can be laid down to determine whether a particular damage is the cause of a particular act.

Kinds of damages

There are six kinds of damages-

 1. Nominal damages

2. Contemptuous damages

3. Exemplary or Punitive damages

4. Compensatory damages

5. Prospective damages

6. Personal damages

1. Nominal Damages

Nominal damages are given not as a compensation for injury or damage to the plaintiff but for
recognition of a legal right vested in the plaintiff which is violated by the defendant. Nominal
damages are given only in respect of tort actionable per se. The amount of damages is very small
for example, Rs. 1.
In
Ashby
v.
White
it was observed that Every injury imports
damage though it does not cost the party one farthing and its impossible to prove contrary, for
damage is not merely pecuniary, but injury imports damage, when a man is thereby hindered of
his right. As in an action for slanderous words, though a man does not lose a penny by reason of
speaking them, yet he shall have an action.
So if a man gives another a cuff on the ear, though, it cost him nothing, not so much as a little
diachylon (plaster), yet he shall have his action, for it is a personal injury. So, one shall have an
action against another for riding over his ground, though it does him no damage, for it is invasion
of his property, and the other has no right to come there.

In
Constantine
v
Imperial London Hotels Ltd.
the defendant wrongfully refused to
accommodate the plaintiff, a famous West Indies cricketer, in one of their hotels, where the
plaintiff wished to stay. The defendant him with lodging in another of their hotels. It was held
that the plaintiff was entitled to nominal damages of five guineas.

In the instant case, the plaintiff was a legally qualified voter in a parliamentary election and the
defendant was a returning officer. The defendant wrongfully refused to register a duly tendered
vote of the plaintiff. Thus the legal right of the plaintiff to cast his vote was infringed although he
did not suffer any loss because the candidate for whom he voted was elected. Despite this the
court held the defendant liable and asked him to give the plaintiff nominal damages of 1 shilling.

2. Contemptuous damages

The amount awarded is very trifling because the court forms a very low opinion of the plaintiffs
claim and thinks that the plaintiff although has suffered greater loss, does not deserve to be fully
compensated. For instance, for the defendants battery against the plaintiff is found to be some
offensive remark by the plaintiff. It is to be disguised from nominal damages are awarded when
the plaintiff has suffered no loss, whereas contemptuous damages are awarded when the plaintiff
has suffered some loss but he doesnt deserve to be fully compensated.

3. Exemplary or Punitive damages

When the damages awarded are in excess of the material loss suffered by the plaintiff with a
view to prevent similar behaviour in future, the damages are known as exemplary or punitive or
vindictive. Such damages are not compensatory in nature, they are rather by way of punishment
to the defendant.

Lord Delvin in
Rooks
v.
Barnard
expressed that the object of exemplary
damages being to deter and punish the awardee of such damages confuses the civil and criminal
function of law.
It was also held by Lord Delvin that such damages can be allowed only in the
following three cases:
a) Where the damage has been caused by oppressive, arbitrary, unconstitutionally
action by the servants of the government and it did not extend to oppressive action
by private corporations or individuals.
b) Where the defendants conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable to the plaintiff.
Exemplary damage can properly be awarded whenever it is necessary to teach a
wrongdoer that the tort does not pay.
 c) Where exemplary damages are expressly authorized by the statute.

In
Bhim Sigh
v.
State of J. & K
the Supreme Court awarded exemplary
damages when there was a wrongful detention. In this case, Bhim Singh, a member of
Legislative Assembly was arrested and detained to prevent him from attending the Assembly
session. The detention was challenged in the Supreme Court through a writ petition but by the
time of the decision Bhim Singh had been set free. There was now no need to order that he be set
at liberty but the Supreme Court considered it to be an appropriate case for awarding exemplary
damages amounting to Rs. 50,000 to Bhim Singh, which the state government was required to
pay within 2 months. While granting compensation, the Supreme Court referred to its earlier
decision in RudalSah v. State of Bihar and Sebastian M. Hongary v. Union of India.

4. Compensatory damages.

Generally the damages are compensatory because the idea of civil law is to compensate the
injured party by allowing him, by way of damages, a sum equivalent to the loss caused to him.
When insult or injury to the plaintiffs feeling has been caused, the court may take into the
account the motive for the wrong and award an increased amount of damages. Such damages are
known as aggravated damages. The idea in awarding such damages is not to punish the
wrongdoer. Such damages, therefore, are compulsory in nature rather than punitive.

5. Prospective damages.

Prospective or future damages means compensation for damage which is quite likely the result of
the defendants wrongful act but which has not actually the resulted at the time of the decision of
the case. For example, if a person has been crippled ina an accident, the damages to be awarded
to him may not only include the loss suffered by him up to him in respect of that disability.

In
SubhashChander
V
Ram Singh
the appellant, SubhashChander, aged about 7
years, was hit by a bus belonging to the state of Punjab and driven by the respondent, Ram
Singh. He suffered variousinjuries resulting in permanent disability, as a result of which he could
not then walk without a surgical shoe. He also, because of Motor Accident Claims Tribunal
awarded him compensation amounting to Rs. 3,000 under the heading probable future loss by
reason of incapacity and diminished capacity of work. The amount of compensation awarded by
the Tribunal was increased by the Delhi High Court to Rs. 7,500.

b. INJUNCTION
Injunction is an order of the High Court restraining, the commission, repetition, or continuance
of a wrongful act by the defendant. In order to get this remedy the plaintiff must prove either
damage or apprehended damage. An apprehended damage must involve imminent danger of a
substantial kind or injury which will be irreparable. Thus an injunction is a precautionary remedy
to restrain imminent danger or wrongful act.

The remedy by way of an injunction is a discretionary remedy. The court may refuse to grant this
remedy when it thinks that remedy by way of damages is sufficient relief. Thus an injunction is a
supplementary remedy for the injury caused to the plaintiff which is granted when the remedy of
damages is not sufficient. For example, in case of a continuing nuisance the plaintiff, in addition
to damages for bodily injury, may also obtain an injunction order from the court restraining the
repetition of the act of nuisance by the defendants.

In India, the law relating to injunction is contained in Sections 37, 38, 39, 40, 41 and 42 of the
Specific Relief Ac, 1963. The courts may issue injunction in the circumstances mentioned under
these sections. Under this Act the following kinds of injunction can be issued by the courts-
1. Temporary and Perpetual Injunction;
2. Prohibitory and Mandatory Injunction.

(1) Temporary and Perpetual Injunction- Temporary injunction is such which may continue
until a specified time, or until the further orders of the court that is, until the final hearing of the
case. A perpetual injunction is one which is issued to prevent the defendant to do an act
permanently which is against the right of the plaintiff. A perpetual injunction is a final order of
the court which recognizes the right of the plaintiff. In case of a temporary injunction the
determination of the matter is not in favour of any party. Its main object is to maintain status quo
in the matter until the final hearing of case.

(2) Prohibitory and Mandatory Injunction- Prohibitory injunction forbids the defendants from
doing some wrongful act, repeating it which is likely to interfere with plaintiffs lawful rights.
For example, restraining the defendants to commit or continue the acts like trespass or nuisance.
Mandatory injunction is issued to direct the defendant to do lawful act, for example, to pull down
the wall which causes obstruction to the plaintiffs right to light.
 c. SPECIFIC RESTITUTION OF PROPERTY

Besides damages & injunctions, specific restitution of property is also a remedy available to the
victims of a tort. The court may, at the request of such a person, order the specific restitution of
property. This remedy is available to only such persons who are in possession of the property
and hence it limited to torts infringement such possession.

II.EXTRA-JUDICIAL REMEDIES
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 persons own
strength by way of self-help. In such cases instead of going to the court the person protects his
legal rights by himself. But the law imposes restrictions on the use of these rights such as the
force used to protect legal rights should not be more than necessary and generally, the force used
should be such which is necessary in the circumstances. This includes the following remedies:
1. Self-help
2. Re-entry on Land
3. Expulsion of trespasser
4. Reception of goods
5. Abatement of Nuisance.

1. Self-help- Every person is entitled to use reasonable forces to protect him against any
wrongful act. But this right is subject to condition that use of force self-help must be in
proportion to the danger or injury sought to be prevented. Right to self-help includes the right to
protection of ones 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 persons land, then he is

entitled to abate or remove the nuisance. For example, an occupier of a land may cut branches of
a tree hanging over the window of his house which obstructs his light or his way. Similarly, an
occupier of a land can cut spreading roots from his neighbours land. But there are certain
restrictions on this right. Firstly, before the exercise of this right, he should give notice to his
neighbor. Secondly, in exercising this right unnecessary damage should not be caused. Thus
while removing the nuisance only such damage is caused as is necessary in the circumstances.
Thirdly, if there are two ways of removing the nuisance the way which causes less mischief
should be adopted unless it would cause damage to the innocent third party or the public.

III. 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.

REMEDIES UNDER CONSTITUTION (Articles 32 and 226)

Part III of the Indian Constitution guarantees a number of fundamental rights to the citizen of the
country. Consequently, Articles 32 and 226 of the Constitution confers jurisdiction on the
Supreme Court and the High courts respectively for the enforcement of these fundamental rights.

Article 32(1) guarantees to every person right to move the Supreme Court for the enforcement of
the rights conferred by part III of the Constitution. Article 32, clause (2) provides that the
supreme court shall have the power to issue directions or orders or writs in the nature of
habeaus corpus, mandamus, prohibition, quo-warranto and certiorari , whichever may be
appropriate for the enforcement of any of the rights conferred by Part III , of the Constitution.
Article 226 of the constitution vests the High Courts with similar powers, not only for
enforcement of the right conferred by Part III, but also for any other purpose, viz. to enforce
other legal rights. According to traditional rule, the right to move the Supreme Court was
available only to those whose fundamental right was infringed. But now the Supreme Court has
relaxed the rule of locus standi and permits public interest litigation at the instance of public
spirited citizens for the enforcement of constitutional and other legal rights of any person or
group of persons who because of their poverty or social or economic disability are unable to
approach the Court for relief. A poor can seek the enforcement of their rights under Articles 32
and 226 even by writing a letter to the Court. Secondly, in the beginning the power conferred
under Articles 32 and 226 was exercised only for the prevention of violation of a persons
fundamental rights and for that he had himself to go to court.

Thus the remedies under these Articles are not only preventive but also remedial and help the
victim to rehabilitate himself in the society by awarding him appropriate compensation.
However, these Articles 32 and 226 cannot be used as a substitute for suit for compensation
under relevant laws, but can be used only in exceptional circumstances, viz. where the
infringement of the fundamental right is gross and patent, for example where rights of a large
number of people are affected or if it appears to the court unjust or unduly harsh or oppressive on
account of their poverty or disability or socially and economically disadvantageous position.

Under Article 33 the Court has power to grant remedial relief which includes the power to grant
compensation in appropriate cases where the fundamental rights of the poor and disadvantaged
persons are violated. However, Article 32 cannot be used as a substitute for claiming
compensation for the infringement of fundamental rights through the ordinary process of a civil
court. It can only be done where violation of fundamental rights of poor is gross and patent and
affects persons on a large scale or where it appears to be of unjust or unduly harsh, or
oppressive on account of their poverty, disability or socially or economically disadvantageous
position to seek remedy in the civil court.

CONCLUSION

All the types of Tort Remedies are always not available for every Tort. Generally speaking,
restitutionary and equitable remedies are not available if legal damages will be claimed by the
plaintiff. That is, if a monetary payment will make the plaintiff whole, then there is no need
for a court to issue restitutionary or equitable remedies.

On the other hand, a judge may sometimes issue a combination of different remedies so long as it
is allowed by the laws of their jurisdiction. Or, they may combine remedies while placing a cap
or limit on one of the options. A common combination of remedies is replevin coupled with
legal damages.
For example in a conversion (theft) case, the judge may order replevin so that the plaintiff can
get their stolen property back. On top of this, the judge will typically order the defendant to pay
compensatory damages for the time that the plaintiff was not able to use the property. This is
especially common in cases where the stolen property is equipment or machinery that the
plaintiff uses to generate their income. The defendant may then have to pay damages to
compensate the plaintiff for lost wages.