AAKASH NARANG | LAW OF TORTS-I | II TRIMESTER

Submitted as project on : Law of torts-II

Remedies and damages in

torts

Submitted by:
Aakash narang
2010BALLB-34

Submitted to:

Prof. Rajiv Khare

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TABLE OF CONTENTS

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STATEMENT OF PROBLEM

“Through this project I would be dealing with the origin of the remedies in torts and a brief
understanding of the existence of such remedies”

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INTRODUCTION TO THE LAW OF TORTS

Tort is the French equivalent of the English word ‘wrong’ and of the Roman law term
‘delict’. The word tort is derived from the Latin word ‘tortum’ which means twisted or
crooked or wrong and is in contrast to the word rectum which means straight. It is expected
out of everyone to behave in a straightforward manner and when one deviates from this
straight path into crooked ways he is said to have committed a tort. Hence tort is a conduct
which is twisted or crooked and not straight.

In India the term tort has been in existence since pre-independence era. The Sanskrit word
Jimha, which means crooked was used in ancient Hindu law text in the sense of ‘tortious of
fraudulent conduct’. However, under the Hindu law and the Muslim law, tort had a much
narrower conception than the tort of the English law. The punishment of crimes in these
systems occupied a more prominent place than compensation for wrongs. The law of torts in
India presently, is mainly the English law of torts which itself is based on the principles of the
common law of England. However the Indian courts before applying any rule of English law
can see whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application.

There are numerous kinds of torts which prevail in India. Some of them namely being
trespass to person, trespass to land, negligence, vicarious liability, strict liability, conversion,
malice etc.

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NEED FOR REMEDIES IN THE AREA OF TORT LAW

Tort law is all about the civil wrongs in our society as was spoken about in the previous page.
As is prevalent and visible in the criminal side of law that as compensation, punishment is
awarded. Similarly the word for compensation in tort law is known as a “REMEDY”.1

Very petite things that go on in the society which tend to injure the other person in any
manner but is not a crime is termed under the law of torts. Many a times even we commit
such errors. But it isn’t correct if we get away with it as it then gives the whole society certain
liberties to commit such errors in the future.

One such example I can take from my own life. I was once driving a car and there was a
puddle of water ahead of me which I knew about but was negligent about it and went and hit
my tyre there. It resulted in a woman getting drenched.

Such aforementioned activities are not viable in a society like ours. Hence there is a need for
remedies in torts.

1
R.K Bangia- The law of torts
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DAMAGES

Damage is the most important remedy which the plaintiff can avail of after the tort is
committed. They are of various kinds:-

(1) Nominal damages

(2) Contemptuous damages
(3) Compensatory, aggravated and exemplary damages
(4) Prospective damages

I would be dealing with each of the damages in a detailed manner along with cases for
reference to understand the damages.

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(1) Nominal damages

Ordinarily, damages are equal to the harm suffered by the plaintiff. But there are
certain situations where even though there is infringement of legal rights but no loss is
caused to the plaintiff popularly referred to as “ injuria sine damno ” . In such
situations the court prefers to award nominal damages which are usually as the name
suggests, quite nominal.

Nominal damages are those of no appreciable amount. Nominal damages are awarded

where there has been an infringement of a legal right, but where such infringement
occasioned no real damage, and where it was not accompanied by aggravating
circumstances.9 The plaintiff, in some cases, may recover nominal damages even
where the wrongful act of the defendant resulted in a benefit to the plaintiff.

Case law

 Nominal damages are very small damages awarded to show that the loss or harm
suffered was technical rather than actual. Perhaps the most famous nominal damages
award in modern times has been the $1 verdict against the National Football League
(NFL) in the 1986 antitrust suit prosecuted by the United States Football League.
Although the verdict was automatically trebled pursuant to antitrust law in the United
States, the resulting $3 judgment was regarded as a victory for the NFL. Historically,
one of the best known nominal damage awards was the farthing that the jury awarded
to James Whistler in his libel suit against John Ruskin. In the English jurisdiction,
nominal damages are generally fixed at $22

2
http://www.worldlawdirect.com/article/2542/compensatory-damages.html
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(2) Contemptuous damages

In case of contemptuous damages, the amount awarded is trifling because the court
forms a very low opinion of the plaintiff’s claim and thinks that the plaintiff although
has suffered great loss, does not deserve to be fully compensated.

It is to be distinguished from nominal damages because nominal damages are awarded

when no loss is caused to the plaintiff, whereas contemptuous damages are awarded
when loss is caused to the plaintiff but in the eyes of law it is not worthy of being
compensated.

In some cases in tort, the plaintiff may win his case, but the court may decide that in
equity his case is entirely without merit, and award contemptuous damages, the
amount of which is commonly referred to as ‘the smallest coin of the realm’. As the
plaintiff is not awarded the costs of the action in such cases, the court will in effect
have imposed a penalty upon him, despite the fact that his action has been successful.
Contemptuous damages are rarely awarded, but are sometimes considered appropriate
where a person of generally bad reputation brings an action for defamation which
technically he is entitled to win. In such a case, in awarding contemptuous damages,
the court is in effect indicating that his reputation was already so bad that the libel or
slander did little or nothing to make it worse.

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COMPENSATORY, AGGRAVATED AND EXEMPLARY

DAMAGES

Generally the damages are compensatory as the idea of civil law is to compensate the
injured party by allowing him, by way of damages, a sum equivalent to the damage caused to
him. When insult or injury is caused to the feelings of the plaintiff the court may take into
account the motive of the defendant and award increased amount of damages. This type of
damages are known as aggravated damages. The idea in such damages is not to punish the
wrongdoer hence it is taken as a part of compensatory damages. Hence they are
compensatory in nature rather than punitive.

When the damages awarded are in excess of the material loss suffered by the plaintiff with
the view to prevent similar behaviour in future, the damages are known as exemplary
damages.

COMPENSATORY DAMAGES V. PUNITIVE DAMAGES

The law recognizes three major categories of damages: COMPENSATORY DAMAGES,

which are intended to restore what a plaintiff has lost as a result of a defendant's wrongful
conduct; nominal damages, which consist of a small sum awarded to a plaintiff who has
suffered no substantial loss or injury but has nevertheless experienced an invasion of rights;
and punitive damages, which are awarded not to compensate a plaintiff for injury suffered but
to penalize a defendant for particularly egregious, wrongful conduct. In specific situations,
two other forms of damages may be awarded: treble and liquidated.3

However, PUNITIVE DAMAGES may be awarded for particular types of wrongful conduct.

Before an individual can recover damages, the injury suffered must be one recognized by law
as warranting redress, and must have actually been sustained by the individual.

3
http://law.jrank.org/pages/5953/Damages.html
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explaind by way of example

If you have been in an auto accident, you may be facing many financial pressures.

Fortunately, these pressures can be alleviated by filing a personal injury lawsuit.
Compensatory damages and punitive damages are the two main types of damages that you
can recover through a personal injury lawsuit. 

Compensatory damages are paid by the defendant to repay you and other indirect victims of
the car accident (such as your spouse or children) for physical injuries, emotional injuries,
and monetary costs caused by the accident. The damages caused usually affects you
financially. On the other hand, punitive damages, also known as exemplary damages, are
awarded by the court to punish the party responsible for your accident. This is to teach
him/her a lesson in order to change his/her malicious or reckless behavior.  

Types of compensatory damages

There are several different kinds of compensatory damages, including:

•    Physical disability,
•    Disfigurement,
•    Interest due from money withheld, 
•    Loss of spouse’s contribution to household, 
•    Auto damage and rental car expenses, 
•    Loss of wages or income, including overtime wages and earned sick and/or vacation
time, 
•    Emotional distress or trauma, 
•    Pain and suffering, including depression, fear, grief, humiliation and/or nervousness, 
•    Medical bills, 
•    Loss of life’s pleasures, 
•    Mental disability or impairment, 
•    Property damage (repair or replacement), 

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•    Loss or impairment of earning capacity, 

•    Loss of affection (awarded your spouse)

CASE LAWS ON COMPENSATORY DAMAGES

Rookes V. Barnard

Douglas Rookes was a draughtsman, employed by British Overseas Airways Corporation

(BOAC). He resigned from his union, the Association of Engineering and Shipbuilding
Draughtsman, (AESD) after a disagreement. BOAC and AESD had a closed shop agreement,
and AESD threatened a strike unless Rookes resigned also from his job, or was fired. BOAC
suspended Rookes and after some months dismissed him with one week's salary in lieu of
proper notice. Rookes sued the union officials, including Mr Barnard, the branch chairman
(also the divisional organiser Mr Silverthorne and the shop steward Mr Fistal). Rookes said
that he was the victim of a tortious intimidation who had used unlawful means to induce
BOAC to terminate his contract. The strike was alleged to be the unlawful means.

Judgement

At first instance, before Sachs J, the action succeeded. This was overturned in the Court of
Appeal. The House of Lords reversed the court of appeal, finding in favour of Rookes and
against the union. Citing a case from the eighteenth century called Tarelton v.
M'Gawley (1793) Peake 270 where a ship fired a cannonball across the bows of another,
Lord Reid said the union was guilty of the tort of intimidation. It was unlawful intimidation
'to use a threat to break their contracts with their employer as a weapon to make him do
something which he was legally entitled to do but which they knew would cause loss to the
plaintiff.'[1]

A corollary to the main issue in the case, but of greater lasting importance, was Lord Devlin's
pronouncements on when punitive damages are applied. The only three situations in which
damages are allowed to be punitive, i.e. with the purpose of punishing the wrongdoer rather
than aiming simply to compensate the claimant, are in cases of,

1. Oppressive, arbitrary or unconstitutional actions by the servants of government.

2. Where the defendant's conduct was 'calculated' to make a profit for himself.
3. Where a statute expressly authorises the same.

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Bhim Singh 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 the legislative assembly was arrested and detained to prevent
him from attending the assembly session. The detention was challenged in the supreme court
througha writ petition by the time of the decision, Bhim Singh had been set free. Eventually
the state government had to end up paying Rs 50,000 to Bhim SIingh as exemplary damages.

Rudal Sah V. State of Bihar

In Rudal Shah V. State of Bihar - the petitioner Rudal Shah was detained illegally in prison
for more than fourteen years. He filed Habeas Corpus before the court for his immediate
release and inter alia prayed for his rehabilitation cost, medical charges and compensation for
illegal detention. After his release, the question before the court was "whether in exercise of
jurisdiction under Article 32, the court can pass an order for payment of money? Whether
such order is in the nature of compensation consequential upon the deprivation of
fundamental right? The court answered this query in the affirmative, this affirmation was a
real acceleration and giant leap in the compensatory-cum-constitutional tort jurisprudence in
our legal history.

The decision of Rudal Shah was important in two respects. Firstly, it held that violation of a
constitutional right can give rise to a civil liability enforceable in a civil court and; Secondly,
it formulates the bases for a theory of liability under which a violation of the right to personal
liberty can give rise to a civil liability. The decision focussed extreme concern to protect and
presence the fundamental right of a citizen than sovereign and non-sovereign dichotomy

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PROSPECTIVE DAMAGES

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

Damages in tort actions are not limited to the period that ends with the institution of the
lawsuit. In an action for personal injury, for example, the jury can properly consider the
potential consequences of an injury that might require a major operation at some time in the
future in assessing the present value of an injury as opposed to future damages. Damages can
be awarded to a plaintiff who has adequately established that there will be future effects from
an injury precipitated by the defendant's misconduct. The amount of certainty required in the
assessment of future damages varies from one jurisdiction to another; however, no recovery
can be permitted for the mere possibility of future consequences of harm inflicted by the
defendant.

Case laws
Subhash chander V. Ram Singh

The appellant Subhash Chander aged about seven years, was hit by a bus belonging to the
state of Punjab and driven by the respondent, Ram Singh. He suffered various injuries
resulting in permanent disability, as a result of which he could not then walk without surgical
shoe. He also because of that disability could not take employment in certain avenues. The
Motor accidents claims tribunal awarded him compensation amounting to Rs 3000 under the

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heading “probable future loss by reason of incapacity and diminished capacity of work”. The
amount of compensation so awarded was increased by the Delhi High Court to Rs 7500.

Y.S Kumar V. Kuldip Singh

The respondent who was a taxation officer, was hit by a motorcycle, resulting in physical
injuries at the ankle. Because of the injuries he suffered, he suffered permanent disability
which affected enjoyment of his daily life. He was awarded Rs 7200 as compensation..

Lakshminarayan V. Sumitra Bai

The defendant lured the plaintiff girl to have sexual relations with him. Under the grab of
promise to marry. After the girl became pregnant, he refused to marry the girl. The plaintiff
was held entitled to substantial damages on account of physical pain, indignity, chances of
marrying become dim and social stigma. It was also held that mere acquittal of the boy and
others in criminal case do not bar an action in the law of torts.

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Bibliography
1) Law of torts by R.K Bangia

2) Law of torts by by Avtaar Singh

3) Course material by Dr R.K Khare

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