REMEDIES IN TORTS

 

REMEDIES IN TORTS:

 

Overview:

Long time ago, powerful people used to commit wrongs against the weak. Might was right. There was the concept of retaliation and revenge. Primitive people were unaware of the concept of ‘remedy’. After a long time, when human was rationalized, they realized the concept of ‘remedy’ when someone – an intelligent human being – invented the maxim, “Ubi Jus Ibi Remedium” – there is no wrong without a remedy or for each wrongful act there will be a remedy. So, with the introduction of the concept of remedy, the might is right paradigm is taken over by the paradigm of remedy. 

 

 

What is a Remedy?

‘Remedy’ means ‘relief’. Remedy is help. Remedy is assistance. Remedy is the repairing of harm, loss or damage. Remedy is the restoration of the original position of a victim against whom a wrong is committed.

 

Remedy, relief or help can be granted through two main ways:

1):Judicial ,       2): Extra Judicial

 

 

 

 

 

1):JUDICAL REMEDIES:

 

A judicial remedy is a type of help, relief or assistance through court. Courts can provide a remedy or help through the following ways:

1.    Damages: It means compensation in money. This will be explained in detail later on. 

2.    Injunction: It means preventing or permitting an action. To be explained later on. 

3.    Specific Restitution of Property: Giving the victim exactly the same property which was lost.

 

 

 

2):EXTRA JUDICAL REMEDIES:

 

These types of remedies are not provided by the court. These are attained through self-help, for example, when someone has committed trespass on your land, and you try to expel the trespasser with a reasonable force. Please bear in mind, extra judicial remedies are totally different from retaliation or revenge – a practice in the ancient or more traditional societies.

 

 

 

 

 

DETAILED EXPLANATION OF JUDICIAL REMEDIES:

 

A)  DAMAGES: 

 

‘Damages’ is a form of judicial remedy. It means compensation in money. It is a relief through court for a victim where his/her loss is assessed and then compensated or repaired through money/cash. This is the most frequent and famous form of judicial remedy. There are many types or kinds of damages. The most important ones are as under.

 

KINDS OF DAMAGES:

1)    Contemptuous Damages:

 

These are also called, ‘ignominious’ or ‘nominal’ damages. In these types of damages, the court shows hatred or contempt towards the plaintiff. The court awards the least amount of damages or money to the plaintiff because the court thinks that the wrong committed against the plaintiff is of such a nature that the plaintiff should not have brought the matter to the court. That is why, the court shows hatred or anger towards the plaintiff by award him/her the least amount of damages or money. For example, an action brought by a plaintiff in cases of defamation when there is no substantial or material harm to the reputation of the plaintiff. The court shows anger to the plaintiff by awarding him/her very less amount of damages not even paying for his/her legal costs. The idea behind the contemptuous damages is to discourage people from bringing petty matters or trivial cases to the court. In these types of damages there is the recognition of the violation of the legal right but when the violation or harm is assessed the courts reach on conclusion that the violation of a minor nature and the plaintiff should not have action to the court. So, what the courts do is to provide nominal damages to the plaintiff. 

2)Substantial Damages:

 

These are also known as material, ordinary or compensatory damages. These are awarded more frequently, that is in majority of the cases. After assessing the harm, the courts usually provide a fair and equitable compensation to the plaintiff. For example in car accident cases, the loss or harm to the non-faulty car, driver, passengers, current market values and other important factors are taken into consideration by the court in order to determine the fair and equitable damages.

3) Exemplary Damages:

In these types of damages, contempt or hatred is shown towards the defendant. The defendant conduct reflected in the circumstances of the case under consideration is such that to compel the sitting judge to award very high damages to the plaintiff. This is to set an example of the case so that others refrain from doing the same. It is a form of punishment. The plaintiff usually asks less amount of damages at the time of the submission of plaint or application in the court. But when the judge goes through the circumstances of the case and reveals some important facts about the conduct of the defendant the judge shows great anger, contempt and hatred towards the defendant and very high damages are awarded even though not asked expressly by the plaintiff at the time of filing of the case. All such damages are called exemplary damages. For example, when a minor child is seduced/sexually abused by an adult.    

 

 

 

4)  General Damages:

 

These are awarded to the plaintiff for the direct effects of the accident. For example physical pain and sufferings. If you are injured in an accident, you will almost certainly experience somebody paid and suffering for which you can claim general damages. Other examples are, mental pain, lower quality of life, loss of companionship etc. 

 

5)  Special Damages:

 

Special damages are awarded in cases where the harm to the plaintiff is not direct from the accident but indirect. For example, a car accident of a painter damaging his/her hands in such a way not to continue with his/her profession anymore and thus is unable to earn his/her livelihood. The plaintiff is required to prove that he/she is an employed painter and his/her daily livelihood depends solely upon his/her painting work. And that the car accident has completely damaged or impaired his/her hands to work anymore. Apart from providing the general damages the court also provides special damages to the plaintiff to pay for his/her livelihood throughout his/her life. 

 

 

 

6) Prospective and Continuing Damages:

 

Harms received through same of cause of action must be record in the form of damages once for all. More than one legal action will not lie on the same cause of action. If Ali beats Babar and breaks Babar’s arms and ribs, Babar must sue for injury to both arm and ribs. Babar cannot split up his actions into two, one for harm to his arm and then another for harm to his ribs. Unlike to this, prospective and continuing damages are awarded where the cause of action is continuing one, separate cause of action can be brought for each unlawful act causing fresh harm. For example, A defames B and as a result B loses his job. B then goes and joins another company or office but again loses his second job due to the previous defamation done to him by A. B has now suffered losses at two different time. So, B can recover damages when he lost the first job and then he can also sue A for recovering damages due to the loss of his second job. All such damages are called prospective and continuing damages. 

 

 

B)  INJUNCTION:

 

Those cases in which damages i.e compensation in money is not an appropriate remedy, courts provide the remedy through an injunction. It is an order of a court restraining a defendant from a wrongful act or allowing a plaintiff to continue his/her act to complete any task or project. For example, if your right of way is going to be threatened by erecting a wall in your way, the court restrain the person from erecting the wall. This is called injunction. Injunction is discretionary. You cannot claim injunction as a matter of right. It is up to the court to decide if injunction is a better remedy than damages. Before an injunction is granted, a plaintiff is required to prove that there are greater chances or probabilities that his/her right is going to be violated. And the violation will be such for which there will be no appropriate compensation in money. 

 

FORMS OF INJUNCTION:

 

There are four important forms of injunction.

1.    Temporary Injunction: When the court provides an interim or temporary remedy restraining a defendant from doing a wrongful act for a limited period of time, say one month or so or even more or less than that period such injunction is called temporary injunction. Temporary injunctions are ordered not decreed. In other words, the court issue an order during the proceeding not a decree at the end of the entire case. The court may issue verbal orders called interlocutory orders in this regard. That is why, temporary injunctions are also known as interlocutory injunctions. These are also called ‘stay order’. 

 

2.    Permanent Injunction: These are awarded after the entire case is decided and the court issue a decree. It is always in written form. If the court issues a permanent injunction against a defendant, he/she is restrained forever from doing the wrongful act. Therefore, permanent injunctions are also called ‘perpetual injunction’.

 

 

3.     Prohibitory Injunction: These types of injunctions restrain the commission of a wrongful act. So, these are negative in nature. These have the preventive effects. That is to prevent further harm to the plaintiff. For example, if you are not the author of a book and you intend or are in the middle of copying someone else’s work, the court can prohibit you from doing the same. 

 

4.    Mandatory Injunction: These allow a plaintiff to carry on with the lawful act. These are positive in nature. These have the effects to guarantee the exercise of a lawful act. For example, if you are the author of a book you will be allowed by the court to circulate its copies.  

 

 

 

 

C):SPECIFIC RESTITUTION OF PROPERTY:

 

These are the third form of judicial remedies. These are specific remedies not general remedies. Through these remedies a plaintiff is entitled to get in return exactly the same thing which he/she has been deprived of. For example, your handwritten notes, if you have been deprived of it, you need exactly the same notes not different notes or books on the same topic. Specific restitution of property demands that an appropriate remedy is the return of the same thing. There is no other alternative to that. For example, compensation in money will not be an appropriate remedy to the loss of your wedding photographs. 

 

 

 

 

KINDS OF THE SPECIFIC RESTITUTION OF PROPERTY:

 

There are many types or kinds of this remedy, however, some of the most important ones are as under.

 

1):Replevin: It is a legal action to recover specific goods of which a plaintiff had been wrongfully dispossessed of. 

2):Detinue: It is a legal action to recover specific goods and damages. 

3):Trover: It applies to the lost and found cases of goods. When a plaintiff has lost a cell phone, for example, and the same thing has been found by a defendant. In law, the defendant is required to return the cell phone to its real owner. However, the defendant instead of returning the cell phone convert it to his/her own use. The plaintiff can bring an action of trover against the defendant. 

 

 

 

DETAILED EXPLANATION OF EXTRA JUDICIAL REMEDIES: 

 

As mentioned before, these remedies are available to a plaintiff without the help of any court. A plaintiff can get such relief through self-help. Law recognizes self-help in certain cases. However, the plaintiff is required to apply reasonable and proportionate force at the right time to seek self-help. Remember, self-help does not mean taking revenge or retaliation. 

 

 

 

 

 

KINDS OF EXTRA JUDICIAL REMEDIES:

 

There are many kinds of this remedy, however, the most important ones are as under:

1):Self-defence: Everyone is entitled to defend himself and his/her property. 

 

2):Expulsion of Trespasser: If a stranger has entered your house without your permission, you are allowed to expel the person. Make sure, you apply reasonable and proportionate force. Extra judicial remedy is allowed here because you will have no time to resort to the court to expel a trespasser. Self-help or help through your family and friends can be sought to expel the trespasser.

 

 

3):Re-entry on Land: If you are the owner of a house and you have given it on rent to someone, the time period of rent has expired and the tenant refuses to vacate the house. In this case you are entitled to enter your house. Make sure, you apply reasonable force. Disproportionate force, retaliation or revenge is not allowed in such cases. 

 

4):Recaption of Goods: This means the re-taking of goods. When someone has borrowed your goods, people used to do this, for example in cases of food catering, and the borrowed goods are not returned. You are allowed to re-take the goods without the intervention of the court. Recaption is different from Detinue, Trover and Replevin because recaption is extra-judicial remedy while the remaining three are sought out through the intervention of court. 

 

5):Distress Damage Feasant: When an animal has committed trespass on your land, you have the right to detain such animal unless and until the owner of the animal has paid you compensation.

 

6):Abatement of Nuisance: When a wrongdoer is creating nuisance, for example, disturbance through loud music, you can knock on  his/her door and stop the music.