REMEDIES Under Tort Law (Sept 1, Class 9)

- The discussions on the general principles regarding tortious liability indicated that one of the
important elements in tort law was the existence of a remedy when a wrongful act or omission
by another person violates your legal right.
- In that context, the implication of Ubi Jus Ibi Remedium is important – where there is a
right, there is a remedy
- It will be tragic to have certain rights and to not have any remedy if they are violated – this
conceptual importance of remedies is best-explained in Ashby v White, 1703 - “If a man has
a right, he must of necessity have a means to vindicate and maintain it and a remedy if
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.”

Therefore, with the background of having known the majestic importance of remedies in tort
law, it is vital to learn more about the various kinds of remedies we have under tort law.
Even though damages is the main remedy granted by courts, there are certain other types of
remedies as well that afford effective reliefs to plaintiffs.

Broadly speaking - 2 kinds of remedies – Judicial and Extra-Judicial

Judicial Remedies - those which are granted by courts as per the principles evolved in
common law via case law.
- 3 types of Judicial Remedies -
1. Damages
2. Injunction
3. Specific Restitution of Property

Extra-Judicial Remedies - Actions which the affected party takes on his own without
approaching the courts to remedy the injuries caused by a tortious action.
- These are necessarily in the nature of ‘self-help’ remedies. However, being outside the scope
of the law, people should resort to such extra-judicial remedies with due care so that they do
not cross the threshold of reasonability.
- Judges discourage the use of extra-judicial methods because humans tend to act based on their
emotions when their rights violated or any actual damage is caused to them. This may lead
citizens to take the law into their own hands and cause disorder in the society.

- 6 types of Extra-Judicial Remedies -

1. Private Defense - It is lawful for a person to defend his person/property by using

proportionate force against any real and imminent threat. Private defence in that sense a
remedy for preventing a tort or preventing the repetition of a tort by a wrong-doer.
2. Expulsion of trespasser - A person who is the rightful owner of a property can use legitimate,
reasonable, and proportionate force necessary1 to expel a trespasser from his property.

1
What is reasonable or proportionate would be determined in the context of the facts and circumstances.
 However, the rightful owner cannot cause wilful physical injury & should not resort to
violence.
3. Re-entry on land – This remedy relates to the remedy discussed above. A man who is
wrongfully dispossessed of his own land may retake its possession, if he can do so in
a peaceful manner and without the use of force ideally. BUT as mentioned above, use of force
is possible if it is reasonable in nature.
Case - Hemmings v The Stoke Poges Golf Club, 1920 English case (NO NEED TO KNOW
in detail; just for your information):
 The defendant-landlord had entered his property (house) where the plaintiff was living
 Landlord removed the plaintiff from the house using adequate and reasonable force
necessary.
 The landlord evicted the plaintiff because the plaintiff’s right to live in that house
continued only till the time when he was the employee of the landlord’s company – but
he was no more an employee of the landlord when the eviction occurred.
 COURT Held: The plaintiff does not have the right of action against the landlord as he
rightfully re-entered a property which he lawfully owns by expelling the tenant trespasser
by only using necessary and reasonable force.
4. Recaption or retaking of movable goods – If person Mr.X wrongfully takes away the goods
of a lawful owner Mr.Y to X’s house and keeps it in his possession, it gives Mr.Y an implied
right to enter Mr.X’s house to get back those goods – And the law would not deem that action
by Mr.Y as trespass. But remember that, only reasonable force can be used.
5. Distress Damage Feasant -
 Distress – the right to retain something
 Feasant - an object or a living thing which has done something wrongful to the plaintiff
 Damages - the loss/damage caused to the plaintiff
 For instance, if some cattle owned by your neighbour trespasses into your house and
causes any damage to your garden, you have the right to detain that cattle until its owner
pays monetary compensation to you for the damages suffered because of the cattle.
 But this remedy does not grant you the right to sell the cattle. In fact, there is a duty cast
on you to feed the cattle and provide necessities to sustain its life for the entire period of
detention.
 However, this extra-judicial remedy is not prevalent in most jurisdictions. Statutes in
countries in like India and the UK have in effect, abolished Distress Damage Feasant
remedy. For example, In India, the Cattle Trespass Act, 1871 has abolished it effectively.
6. Abatement of nuisance - Abatement means removal of the nuisance by the injured party. It
must be done in a peaceful manner without endangering life and injury to others. For
example, if the plaintiff finds that branches of a tree in the neighbour’s compound is over-
extending to her house and causing nuisance as the leaves were continuously falling down
into the water well. In such cases, you may cut those nuisance-causing branches even without
giving notice to the neighbour.

 INJUNCTIONS

The main remedy other than damages is injunction.

 Injunction is an order from the court requiring the defendant to desist from doing or
continuing a wrongful act/omission OR perform some positive act to ensure that the
plaintiff’s rights are restored and no damage is caused further.
For getting such an injunction, the plaintiff must prove that due to the actions of the
defendant, a damage has occurred OR that she is apprehending new damages that are
imminent and substantial in nature.
Injunctions are granted as per the discretion of the court considering the circumstances of the
case, and is not a guaranteed right of the plaintiff.
Most popularly granted as a remedy in torts like nuisance, defamation, and trespass
Important aspect - Courts can grant injunction and damages in a single case. They are not
mutually exclusive remedies in torts. For example, nuisance by the defendant has caused
health injuries to you – the court will order injunction to stop the activity conducted by the
defendant to prevent further damage as well as grant monetary damages for the health injury
that you have incurred until now.
While Damages is a common law remedy regulated solely by the discretion of the courts,
injunctions are governed in India by statutes like the Specific Relief Act, 1963 and Code of
Civil Procedure,1908

Types of Injunctions – for examples, remember the discussions we had in class.

1. Prohibitory - Injunctions that would order the defendant to stop doing a wrongful act. The
term ‘STAY ORDER’ is popularly used in this context.
2. Mandatory – Injunctions that would order any person to perform some positive act to put an
end to the wrongful state of affairs that was causing damage to the plaintiff.

These two types are categorised based on the nature of the injunctions and its purpose.

3. Temporary/ Interim –
 Injunctions which are issued only for specific period in the beginning of a suit usually
to last until the time that suit is finally decided after trial.
 It is a provisional remedy that is used to preserve the subject matter of the suit in its
existing condition (for example, like a book in defamation or moveable goods in a tort
of conversion).
 Remember that a temporary injunction is not granted on the merits of the case and does
not indicate who is the winning party.
 Such injunctions allow the trial in that case to go forward effectively.
 Also note that, if a plaintiff was granted a temporary injunction in the beginning to stop
the defendant from doing some activity. But after the case, let us assume the defendant
won the case. In such scenarios, the court may ask the plaintiff to pay damages to the
defendant if the defendant has suffered any loss because of the temporary injunction
issued by the court.
4. Permanent – Injunctions issued after a suit is decided on merits and judgment has been
passed. Such permanent injunctions would be binding on the defendant forever! Unlike
temporary injunctions, courts here determine the rights and liabilities and accordingly grant
permanent injunctions based on such determination to secure the rights of the plaintiff.
The last two injunctions have been categorised accordingly based on the time when an injunction
is issued.

 SPECIFIC RESTITUTION OF PROPERTY

This is the 3rd type of Judicial Remedies under tort law

A person who has been wrongfully dispossessed of immovable property (land) or movable
property, is entitled to recover the said property
Such a remedy depends on the prayer/arguments made by the plaintiff in his suit. If you ask
only for damages, then the court would not order specific restitution of the dispossessed
property by the defendant.
Obviously, this remedy is applicable only in torts relating to properties like conversion.
The concept of restitution means - restoration of the plaintiff back to the original condition
before the legal injury or the actual damage he incurred.
Like it is in the case of injunctions and damages, a court can award damages alogn with
restitution in a single case.

 Types of Damages

1. Contemptuous
Damages awarded will be very low.
Courts award this type of damages to plaintiffs in cases where there would be a violation of
legal rights technically but the court concludes that the Plaintiff does not have any credible
moral standing to make such a claim.
Usually seen in tort of defamation – Recollect the case we discussed in class about the
goalkeeper in England who was alleged to have taken bribes for letting in goals where the
court awarded only 1 pound as damages
Courts award contemptuous damages to display its disapproval at plaintiffs in pursuing the
claim before courts when they have not displayed any morality or reasonability.
Rarely used.

2. Nominal
Where the person has not suffered any actual damage but his legal right has been violated –
Ashby v White – only the legal right to make the vote was violated – court only granted 5
pounds as damages.
Here, unlike contemptuous damages, courts award a low amount as damages not because of
any immorality on the side of the plaintiff. Nominal amount is given because of the lack of
any actual loss for the plaintiff.

3. Ordinary or Compensatory
These are the normal damages that we talk about generally. Those damages which are granted
to redress the losses suffered by the plaintiff.
The quantity depends on the facts of each case
 Damages will cover all the material/monetary losses you have suffered like damage to your
property or bodily injury that you have incurred AS WELL AS other non-material/monetary
losses like emotional distress, mental agony, nervous shock etc.
When judges calculate damages that have to be granted for such non-monetary losses, they
are generally called ‘aggravated damages’.
IMPORTANT – “Restitutio in Integrum” – restitution to original condition – This is the basic
principle used for assessing ordinary damages. The rule here is that: “the sum of money
awarded must be such that it must nearly as possible be able to put the plaintiff in the same
position as he would have been if he was not injured by the defendant”.

4. Exemplary/Punitive
Unlike other damages, it is punitive in nature to deter the defendant and others in the society
from repeating such tortious wrongs.
Courts award exemplary damages where it deems that if such tortious acts are committed in
the future, the consequences would be quite serious or harmful.
Such damages are used to give a signal that courts will not tolerate any grossly wrongful acts
or conduct of wrong-doers.
Based on judges’ discretion and it can be given in addition to the ordinary damages already
granted in that case.
In India, such damages are given in cases where the tort involved is of an outrageous nature
and gross. For instance, cases like Bhopal gas tragedy or Uphaar cinema fire tragedy are
instances where Indian courts granted punitive/exemplary damages.