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QUAID-E-AZAM LAW COLLEGE, LAHORE

LL.B (PART I)
LAW OF TORT

REMEDIES IN TORT

Q. Write a detailed note on remedies in torts. (2008-A)


Q. What do you understand by damages? What are different kinds of damages? (2005-
S 2004-A) (2008-A)

The remedies available for a tort are of two kinds


a) Judicial b) Extra-Judicial

a) JUDICIAL REMEDIES
Judicial remedies are the remedies that are afforded by the Courts of law. They are
obtained by instituting a suit in civil courts for the purpose. They are further divided
into three categories
1) Damages
2) Injunctions
3) Specific restitution of property
Damages and Injunctions are merely two different forms of remedies against the same
wrong.
1) DAMAGES
Damages, which terms means here unliquidated damages are primary relief in an
action for a tort. Damages are still further classified into different categories;
TYPES OF DAMAGES
i) Nominal
ii) Compensatory
iii) Contemptuous
iv) Aggravated
v) Punitive or exemplary
vi) Damages for personal injuries
i) NOMINAL DAMAGES
Nominal damages are awarded if the action is proved but the claimant has suffered
no loss. The claimant in such a case would receive very small sum of money as
compensation and this would in fact merely demonstrate to the world that the
claimant has won the case. These are usually torts that are actionable perse (in
itself)
Constantine v Imperial Hotel ltd (1949).
ii) COMPENSATORY/ORDINARY DAMAGES
The aim of the compensatory damages is to put the claimant back in the position
he/she would have been if no tort was committed in the first place. It can be a
large or small sum and the plaintiffs own estimate is regarded as maximum limit.
iii) CONTEMPTOUS DAMAGES
These are awarded where the claimant has technically proven the case but the
court wishes to show its disapproval that the case was ever brought in the first
place .The sum awarded is usually the smallest coin of the realm.
iv) AGGRAVATED DAMAGES
These are awarded when the court wants to express its disapproval of the
defendants behavior as a result of which the claimant has suffered more than
would normally be expected in such situations. The court may take into account
the manner in which the tort was committed in assessing damages. If it was such
as to injure the claimant's proper feelings of dignity and pride then aggravated
damages may be awarded. Aggravated damages are solely compensatory, but they
are higher than would normally be the case to reflect the greater injury to the
claimant.
v) PUNITIVE OR EXEMPLARY DAMAGES
These are awarded basically to punish the defendant rather than to compensate the
plaintiff. In Rookes v Barnard [1964] AC 1129, the House of Lords held that,
except where specifically authorized by statute, exemplary damages should be
awarded only in two categories of case;
a) Oppressive, arbitrary or unconstitutional action by servants of the government.
(lucknow development authority v M.K Gupta)
b) Where the defendant's conduct has been calculated by him to make a profit
for himself.(John v MGN ltd)
c) Exemplary damages are authorized by the statue itself.
Exemplary damages are usually awarded for intentional injuries.

MEASURES OF DAMAGES
For the purpose of calculating the award damages are divided into two kinds;
General and Special.
(a) GENERAL DAMAGES
General damage is the damage that is presumed to flow from torts which are
actionable per se, and so need not be specifically pleaded (e.g., loss of reputation
in a libel action).
No evidence need be proved for they arise by the inference of law.
(b) SPECIAL DAMAGES
Special damage refers to the damage that the claimant must plead and prove as
part of his cause of action in torts where damage is the gist of the action (e.g.,
negligence, nuisance, slander).

There is a second and much more commonly used meaning of the distinction between
general damages and special damages. In practice, losses that are capable of being
calculated with reasonable accuracy are pleaded as 'special damages'. Inexact or
unliquidated losses (although they are not presumed and therefore must be pleaded)
are compensated by an award of 'general damages'. For example, in a personal injuries
action, accrued expenses such as damaged clothing, medical expenses and loss of
earnings to the date of trial are special damages. Pain and suffering and loss of
amenity (and prospective loss of earnings) are treated as general damages.

(vi) DAMAGES IN ACTION TO PERSONAL INJURIES

In most actions for personal injuries the claimant suffers two distinct types of loss -
pecuniary and non-pecuniary loss.

(a) PECUNIARY DAMAGES


Pecuniary loss is the damage that is capable of being directly calculated in money terms.
The commonest example is loss of earnings, both actual and future, but it includes all
other expenses attributable to the tort, such as medical expenses, traveling expenses, the
cost of special equipment or of employing someone to carry out domestic duties which
the claimant is no longer able to perform, or loss of pension rights, Accrued and future
medical expenses.
Consequential expenses ii) Cost of care iii) loss of earnings

(b) NON-PECUNIARY DAMAGES


Non pecuniary losses are such immeasurable matters as pain and suffering caused by the
injury, and loss of amenity and loss of expectation of life attributable to a disability.
(2) INJUNCTIONS
Sometimes the claimant requires a remedy which will do more than simply provide
financial compensation. There may also be circumstances in which there is a need to
prevent repletion of the wrongful acts. Injunction is an equitable remedy and can be
awarded in addition to damages in appropriate cases.
Injunctions can be mandatory or prohibitory.
Kelsen v Imperial Tobacco Co (1975).

An injunction is an equitable remedy (though note that a number of statutes confer a


jurisdiction to grant injunctions, e.g., the Protection from Harassment Act 1997), and as
such it is a discretionary remedy. A number of factors will be taken into account in
deciding whether to exercise the discretion:

An injunction will not be granted where damages would be an adequate remedy, nor,
possibly, where the harm to the claimant from the tort is trivial that is the claimant must
prove damage or apprehended damage.( London and blackwall Ry v Cross)
If it is impossible for the defendant to comply with the order it will not be granted, but
the fact that the defendant will be put to considerable trouble and expense does not make
it impossible to comply.
The conduct of the parties may be taken into account.

3 SPECIFIC RESTITUTION

This is remedy for a person who is wrongfully disposed of his immovable/movable


property is entitled to recover it.(S 8,9,10 & 11 of Specific Relief Act 1877)

(2) EXTRA-JUDICIAL REMEDIES

Remedies available to injured party in certain cases by his own acts alone are these as there is
no role of the courts.

1) EXPULSION OF TRESPASSER

A person can expel a trespasser or a trespassing animal from his land.

2) Re-ENTRY ON LAND
A person wrongfully dispossessed can re-enter on land and if he does he cannot be sued for
trespass by the other party.

3) RECAPTION

If a person takes away the goods of another on his land , he gives to their owner an implied
license to enter for the purpose of recaption.

4) ABATEMENT OF NUISANCE

An occupier of the land may after previous notice , enter upon land of another for the purpose
of removing nuisance. But such removal should be;

Peaceful, without danger to Life or limb, after notice to remove the same

5) DISTRESS DAMAGE FEASANT

If damage has been done to land of a person by animals or goods left unattended the
occupier may retain these until any damage done by them has been paid off.

Conclusion

BOOKS RECOMMENDED
1- Winfield and Jolowicz, Iyer on tort, Flemming on tort, Vivene Harpwood on
tort.