REMEDIES OF TORT

By,
Aksh Jain
INTRODUCTION
 The two principal remedies available to the victim of a
tort are damages to compensate for the harm he has
suffered and, where appropriate, an injunction to prevent
future harm. Damages is the predominant remedy.
DAMAGES
 Damages are a matter of right and Injunctions, on the other hand,
are discretionary.
 The fundamental principle (restitutio in integrum) applied to the
assessment of an award of damages is that the claimant should be
fully compensated for his loss. He is entitled to be restored to the
position that he would have been in, had the tort not been
committed, but only to the extent to which money can do it.
DAMAGES
 Certain exception to the above principle:

 Nominal and contemptuous: Here damages may be reduced to

'the smallest coin of the realm’

 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. loss of
future earnings (if pleaded and proved).
DAMAGES
 Aggravated & Exemplary Damages: usually awarded because of
the outrageous character of the tort. They are awarded to indicate
judicial approval of such conduct of the defendant.

 Parasitic Damages: awarded for the impairment of an interest

which, in itself is not protected by the tort in question. Thus a
woman who suffered severe facial displacement in a car accident
received damages for the resulting loss of her husband's
consortium. Lampart v Eastern National Omnibus (1954) 1 WLR
1047.
DAMAGES
 Supreme Court of India has accepted the principle, that exemplary
damages may be awarded for oppressive, arbitrary or
unconstitutional acts of the government or of a statutory authority.

 Exemplary damages are also awarded for harm resulting from

ultra-hazardous activities
INJUNCTION
 Injunctions are orders made by the courts either restraining
(prohibitive) or requiring performance of a specific act
(mandatory) in order to give effect to the legal rights of the
applicant.
 An injunction that prevents a course of action is said to be
prohibitive in nature, and this is the traditional essence of
injunctive relief “it commands cessation of a wrongful act”.
 In India, the power of the court to grant permanent injunction is
derived mainly from Sections 38-42 of the Specific Relief Act,
1963 (SRA).
INJUNCTION
 Few examples where injunctions have been sought or granted:
(a) to prevent interference with the plaintiff's possession and
business, after termination of agency (Southern Roadways Ltd,
Madurai v S.M. Krishnan AIR 1990 SC 673);
(b) to deal with cases of enforcement of bank guarantees (Svenska
Handelsbanken v Indian Charge Chrome AIR 1994 SC 626);
(c) to prevent illegal recovery of taxes (Municipal Corporation of
Delhi v C.L. Batra JT (1994) 5 SC 241);
(d) to adjust conflict of interests between private reputation and
freedom of the press (Reliance Pertothemitais Ltd v
Proprietors of Indian Express Newspapers Bombay, AIR 1989
SC 190);
INJUNCTION
 An injunction issued by the court necessarily restricts the freedom
which is otherwise available to the person injuncted.

 In India, Order 39 of the Code of Civil Procedure, 1908 had laid

down certain guidelines which courts are required to examine
before granting an interim injunction.

(a) whether there was a prima facie case made out by the applicant for
interlocutory injunction;
(b) whether the applicant would suffer irreparable harm if an
injunction were not granted; and
(c) whether the balance of convenience lies in favour of the applicant.
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