Introduction: [1]Any matters in which legal rights are involved remedies are given to the subjects in a society to ensure justice and peace in that particular state. Remedies are the compensation given to a person for the loss he has suffered from, it may be awarded to any person in several ways like it may be ordered by the court, granted by judgement after trial or hearing, by agreement (settlement) between the person claiming harm and the person who has caused it, and by the automatic operation of law. There are some specific kinds of remedies available for the citizens of a state some remedies involve some particular acts to be performed or some acts to be prohibited while others involve some amount of money to be paid as damages for the loss other party has suffered due to injury or breach of contract, some remedies need to be proved by the courts in form of declaration of rights of parties and an order to honour them. An “extraordinary remedy” is the one in which judge assign any specific post to a person to control the situation or problem which has occurred, such as appointment of a refree, master or receiver to investigate, report or take charge of property. A “provisional remedy” is the one which is awarded by the court temporarily in order to safeguard a party from irreparable damage while a law suit or petition is pending.

 

Definition: The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.[2]

 

Kinds of remedies:[3] Remedies of torts are usually of two kinds, namely, judicial and extra judicial. Judicial remedies are those remedies which are awarded to a party by court while extra judicial remedies are those which are available to a party by his own act alone, in certain cases of torts. Judicial remedies are further divided into three main types i.e. damages, injunction, and specific restitution of property, while extra judicial remedies are classified into several other types like Expulsion of trespasser, Re-entry on land, Recaption of goods, Distress damage feasant, Abatement of nuisance.

Judicial remedies

These remedies are:

  1. Awarding of damages
  2. Granting of injunction
  3. Specific restitution of property

First two judicial remedies i.e. damages and injunction are two different forms of remedies against the same wrong, while third one is specific restitution of property.

  1. Damages:[4] The fundamental principle of applying damages is that the plaintiff should be fully compensated for the loss he has suffered from. He is supposed to be restored in the position, he would have been in, before the tort is committed, this may be done by the payment of money.
  • Leading case:

Scott v. shepherd (1773) 2 W Bl. 892[5]

Defendant threw a lighted squib, made of gunpowder, from the street into the marketplace where large groups of people were assembled. The lighted squib landed near Yates. To prevent injury to himself and Yates, Willis threw the quid across the marketplace. The squib landed next to Ryal. To save his own goods from being injured, Ryal picked up the squib and threw it to another part of the marketplace. The squib then struck Plaintiff in the face. The combustible matter of the lighted squib injured Plaintiff’s eyes. Plaintiff lost the use of his eye. Plaintiff sued Defendant for trespass and assault for throwing, casting, and tossing the lighted squib. The jury returned a verdict in favor of Plaintiff.

 

Types of damages:[6]

  1. Nominal and contemptuous: nominal damages are those kind of damages in which plaintiff proves that defendant has committed tort but due to this tort plaintiff has not suffered any loss.

While contemptuous damages are the award of derisory sum, usually the smallest coin of the realm of. These kinds of damages are awarded when court considers that the plaintiff’s action is without merit and he should not have performed that particular act. The plaintiff may then be at risk on costs, which are normally given to the successful party. (1911) 14 C L J 515. [7]

 

  1. General and special:[8] General damage is the type of damage which is supposed to flow from the tort which is actionable per se and so it does not needs to be proved e.g. loss of reputation in a libel action.

While special damages is the term used for the damages in which plaintiff should plead and needs to prove as part of his cause of action in torts where damage is said to be the gift of the action e.g. negligence, slander, nuisance.

  1. C) Substantial or ordinary damages: such kind of damages are awarded where it becomes necessary to compensate the plaintiff fairly for the injury he has suffered from particular tort. These damages are also called compensatory damages. Whatever amount of damage is being given to the plaintiff, no matter it is a small or large amount, it should just be exact fair amount of damages according to the loss of plaintiff. Aim of law is not restitution but compensation, for this purpose circumstances of particular case are noticed. (1946) 2 Ccal. 433[9]
  2. D) Aggravated and exemplary: To award damages court may notice the manner where specific tort is committed and the it may take its decision. If purpose of committing tort is to harm proper feelings of dignity and pride of plaintiff, then in such case aggravated damages may be awarded. These damages are given for purpose of compensating the other party, but they are higher than would normally be the case to reflect the greater injury to the claimant.[10]

While exemplary damages are punitive in nature. The difference between aggravated damages and exemplary damages is that aggravated damages are awarded for the conduct that shocks the plaintiff and that’s why this type of damages constitute real loss, whereas exemplary damages are awarded for the conduct that shocks the court.     In Rookes v. Barnard [1964] AC 1129, the House of Lords held that, except where specifically authorised by statute, exemplary damages should be awarded only in two categories of case:

  1. Oppressive, arbitrary or unconstitutional actions by servants of government.
  2. where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable.
  • Interim:[11] The term interim injunction refers to the grant before end of full trial and hearing and even before proceedings are being properly commenced.
  1. Injunctions: Injunctions involve the orders awarded by the courts which either require or restrain performance of a specific act in order to provide some effect to the legal rights of the applicant. An injunction which prevents some sorts of activity is said to be prohibitive in nature while mandatory injunctions are those in which the defendant has performed omission to act or has infringed the rights of applicant.

Types of injunctions:[12] there are three types of injunctions:

  1. Temporary
  2. Perpetual
  3. Mandatory
  4. Temporary injunction: In temporary injunction court orders prohibition of an act by a party to lawsuit unless there has been a trial or other court action. Its purpose is to maintain status quo and to prevent irreparable damage and third function of such kind of injunction is to subject matter of that particular litigation which is in process until the trial is over.
  5. Perpetual injunction: Some injunctions may also require some specific period of time in which that specific injunction is in force. A perpetual injunction is given after a series of complete court sessions on its full merit. As merits within the case are being discussed in the court and are made clear to establish relationships between the two parties.
3. Mandatory injunctions:
They are of two kinds:
1.     Mandatory restorative injunction
2.     Mandatory enforcing injunction
Mandatory restorative injunction: In this type of injunction defendant is supposed to repair consequences of any wrongful act he has committed. In order to regulate such kind of injunction plaintiff needs to prove where wrongful act has not occurred but he was merely threatened.
Mandatory enforcing injunction: This type of injunction allows the defendant to perform some positive act which he has promised to perform, in such kind of injunction court needs to be satisfied that the agreement between the defendant and plaintiff is specifically enforceable and it is just and equitable to grant the particular injunction.
3.     Restitutionary remedies: These remedies are the third type of judicial remedies and are made to restore the plaintiff to a position of “wholeness”[13], as close as possible to their state before the tort is committed. Thus a person who is wrongfully dispossessed of immoveable property, or of specific moveable property, is entitled to recover the immoveable and moveable property, as the case may be.

 

 

References:

[1] http://dictionary.law.com/Default.aspx?selected=1784

 

[2] http://dictionary.law.com/Default.aspx?selected=1667

[3] Law of torts 2002

 

[4] https://www.legalbites.in/remedies-in-torts/

 

[5] https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/strict-liability-and-negligence-historic-and-analytic-foundations/scott-v-shepherd/

 

 

[6] https://www.legalbites.in/remedies-in-torts/

[7] (1911) 14 C L J 515.

[8] https://legal-dictionary.thefreedictionary.com/remedies

 

[9] (1946) 2 Ccal. 433

[10] https://www.lawteacher.net/lecture-notes/remedies-lecture.p

[11] https://www.lawteacher.net/lecture-notes/remedies-lecture.php

[12] https://www.legalbites.in/remedies-in-torts/

 

[13] https://www.legalmatch.com/law-library/article/remedies-in-tort-law.html

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