Unit-5 Remedies in Tort

Remedies- extra judicial remedies

Let us begin this topic by understanding what ‘remedy’ actually means in Law. A party is said to be ‘aggrieved’ when
something that they may have been enjoying has been taken away from them by another party. This is an infringement
of a party’s rights and it is treatable by law. A legal remedy is one such treatment. When the aggrieved person is taken
back to the position that they were enjoying before their rights were infringed, they are said to have been provided with
a legal remedy. There are various types of legal remedies. For instance, if something that belongs to you has been taken
away from you by a party, the court can either ask them to pay you back in money, or ask them to return your
belongings as they were, and may also punish the party in some cases. There are two broad types of remedies in Tort
Law.
1. Judicial Remedies
2. Extra-Judicial Remedies
Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-
judicial remedies. These are of five main types:
1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress Damage Feasant

Extra-Judicial Remedies
When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-
judicial remedies. In this, the parties take the law in their own hands. Some examples are:

1. Expulsion of trespasser
A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are:
 The person should be entitled to immediate possession of his property.
 The force used by the owner should be reasonable according to the circumstances.
Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and
re-enter himself.

2. Re-entry on land
The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of
force only.

3. Re-caption of goods
The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Re-
caption of goods is different from specific restitution in that it is an extra-judicial remedy, in which the person need not
ask the court for assistance, instead, takes the law in his own hands.
Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back
from A.

4. Abatement
In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance.
Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After
giving due notice to A, B can himself cut or remove the branches if they’re causing him nuisance.

5. Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is
entitled to take possession of the beasts until he is compensated for the loss suffered by him.

Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies are
of three main types:
1. Damages
2. Injunction
3. Specific Restitution of Property
 #1 Damages
Damages, or legal damages is the amount of money paid to the aggrieved party to bring them back to the position in
which they were, before the tort had occurred. They are paid to a plaintiff to help them recover the loss they have
suffered. Damages are the primary remedy in a cause of action for torts. The word “damages” should not be confused
with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.
Types of damages
Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be compensated or the
defendant has to be ‘punished’, there are 4 types of damages:
1. Contemptuous– contemptuous damages are also called ignominious damages. The amount of money awarded
by the court in this case is very low, as to show the court’s disapproval, that is, when the plaintiff himself is at
some fault and cannot wholly be said to be ‘aggrieved’.
2. Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been
caused to him. For example, in cases of trespass, when damage has not been caused, a legal right is still
infringed. Here, the objective is not to compensate the plaintiff.
3. Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss
suffered by him due to the tort.
4. Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when the defendant has
excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The
objective here is to create a public example and make people cautious of not repeating something similar.

General and Special Damages:

When there is a direct link between the defendant’s wrongful act and the loss suffered by the plaintiff. For instance, a
person A, due to his negligence, collides his car with a person B, who has a rare bone condition. In this case, the actual
damage suffered by the plaintiff will be compensated, not taking into account the rare bone condition of the plaintiff.
General damages are ascertained by calculating the amount of actual loss suffered by the plaintiff. For e.g, physical pain
and loss caused due to it, or if the quality of life of the plaintiff is lowered.
Special damages are awarded by proving special loss. There is no straitjacket formula to derive the actual amount. The
plaintiff just has to prove the loss suffered by him/her. For e.g., medical expense, loss of wage (prospective), repair or
replacement of lost or damaged goods/property.

Damages for nervous or mental shock:

Nervous shock
When, due to a negligent act or any other tortious act, a plaintiff’s nerves are damaged due to shock and trauma,
irrespective of whether a physical harm has also been caused with it, he/she is entitled to be compensated for it. The
question before the court of law is whether the nervous shock is actually a resulting consequence of the defendant’s act.
Mental shock
Mental shock, on the other hand is the shock to a person’s intellectual or moral sense. Mental shock, too, can be
compensated for in a suit for damages. Earlier, it was thought that mental shock cannot really be compensated for,
because it cannot be measured, but recently the courts have recognized that the damage in case of mental shock is just
as real as a physical injury.

Cases: McLoughlin v O’Brian

The plaintiff’s husband and three children met with an accident with the defendant, due to the defendant’s negligence.
After seeing her husband and children grievously injured, and hearing the news of one of her children’s death, the
plaintiff suffered nervous and mental shock and went into a state of clinical depression. The House of Lords in this case
ruled in favour of the plaintiff, McLoughlin, whereby she recovered damages for her nervous shock too.

Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai

The plaintiffs in this case were relatives (mother and children) of a middle-aged couple who met with an accident when
another moving bus drove over them as soon as they deboarded their own. The court delivered a judgement in favour of
the plaintiffs, and they received compensation under the heading of ‘Pain, Shock and Sufferings’.

Measurement of Damages
There is no arithmetic formula to decide the quantum of damages. Therefore, a number of factors, including the facts
and circumstances of each case are to be considered to ascertain the damages. Damages are therefore awarded at the
discretion of the court.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position that he/she was in before
the injury due to the tort occurred, or in other words, to bring him back to the position he would have been in, if the tort
did not ever occur.
#2 Injunction
Injunction is an equitable remedy available in torts, granted at the discretion of the court. An equitable remedy is one in
which the court, instead of compensating the aggrieved party,asks the other party to perform his part of the promises.
So, when a court asks a person to not continue to do something, or to do something positive so as to recover the
damage of the aggrieved party, the court is granting an injunction. A very simple example is that of a court ordering a
company of builders to build on a land near a hospital, for the construction sounds may be creating a nuisance to the
hospital.
An injunction is an order of a court that restrains a person from continuing the commission of a wrongful act, or orders
the person to commit a positive act to reverse the results of the wrongful act committed by him, that is, to make good
what he has wrongly done. To receive injunction against a party one must prove damage or the possibility of prospective
damage (apprehended damage). An injunction can be temporary or permanent, and mandatory or prohibitory. Let us
discuss each of them one by one. Law relating to injunctions is found in the Code of Civil Procedure, 1908 and from
Section 37 to Section 42 of the Specific Relief Act (henceforth referred to as the Act), 1963.
A suit of injunction can be filed against any individual, group or even the State.
According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual (permanent).

1. Temporary Injunction
A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the status quo and avoid
further damage until the court passes a decree. It prevents the defendant from continuing or repeating the breach that
he had been doing. A temporary injunction is granted to prevent the party from suffering through the damages during
the court proceedings. They may be granted at any stage during the pendency of the case. Either of the parties can seek
an injunction to be [Link] power to grant a temporary injunction is derived from Rule 1 and 2 of Order XXXIX (39)
of the Code of Civil Procedure. Certain principles are kept in mind while granting a temporary injunction:
1. There has to be a prima facie case.
2. A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)
3. There has to be an irretrievable damage. (The damage has to be such that cannot be compensated for, in
money)
Cases in which temporary injunction is granted
A temporary injunction may be granted in any of the following cases:
1. An injunction can be granted in favour of a party and against the government if the government is barring the
party from doing a lawful act or freely exercising his rights.
2. Under Section 80 of the CPC, an injunction can be granted against an act done by a government/public officer
working in his official capacity.
3. When the property in dispute is in danger of being damaged or wasted by either of the parties.
4. In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due legal process, can
seek an injunction against his/her landlords.
5. In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance so as to
prevent further damage to the plaintiff while the case is being decided.
6. In cases of trademark, copyright infringement, etc.

2. Permanent Injunction
A perpetual or permanent injunction is granted after the court has heard the case from both sides and passes a decree.
Here, since it is a court decree, it is final and perpetually applicable. That is, the defendant cannot continue his wrongful
act, or has to do a positive act for perpetuity.
Cases in which permanent injunction is granted
 To avoid multiplicity of judicial proceedings.
 When damages do not adequately compensate the plaintiff.
 When the actual damage cannot be ascertained.

Mandatory Injunction
When the court has asked the party to do something, it is a mandatory injunction. That is, when the court compels a
party to perform a certain act so as to bring back the aggrieved party or the plaintiff to the position that he/she was in
before the commission of the act of the defendant. For example, the court may ask a party to make available some
documents, or to deliver goods, etc.
Prohibitory Injunction
When the court has asked the party to not do something, it is a prohibitory [Link] court prohibits a person, or
refrains them from doing something that is wrongful. For instance, it may ask the party to remove an object of nuisance
or to stop his act of nuisance.

When can injunctions not be granted

According to Section 41 of the Specific Relief Act, an injunction cannot be granted:
1. To stop a person from filing a case in the same court in which the injunction suit is sought, unless such an
injunction is being asked for, to prevent a multiplicity of proceedings.
2. To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the one in which
injunction is being sought.
3. To prevent a person from applying to any legislative body
4. To restrain a person from filing or fighting a criminal case
5. To prevent the breach of contract, performance of which is not enforced specifically
6. To prevent an act that is not a clear act of nuisance
7. To prevent a continuing breach in which the plaintiff has himself acquiesced
8. When an equally effective relief can be obtained in any other way or through any other sort of proceeding
9. When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from the assistance of
the court.
10. When the plaintiff has no personal interest in the said matter.

Limitation period
According to Article 58 of the Limitation Act, 1963, the period of limitation for filing an injunction suit is three years from
when the ‘right to sue first accrues’, that is, when the right to cause of action commences, not the cause of action itself.
It is an important question of law as to when the cause of action actually arises.

In the case of Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan Chettiar, it was held that the right to sue accrues
“when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit”.

Case: M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products
In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery Products for infringement of
their trademark on their product ‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the
trademark was adopted by them in 1961, and that the defendants had wrongly got themselves registered a copyright
similar to them. The court ruled in favour of the plaintiff granting the defendant an interim injunction.

#3 Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means
restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods,
he is entitled to the restoration of his property.

Remoteness of Damage- Various principles for fixing the liability and to ascertain the damages for the wrong
committed viz
Remoteness of damage is an interesting principle. Once the damage is caused by a wrong, there have to be liabilities.
The question is how much liability can be fixed, and what factor determines it. The principle of Remoteness of Damages
is relevant to such cases. An event constituting a wrong can constitute of single consequence or may constitute of
consequences i.e. series of acts/wrongs. The damage may be proximate or might be remote, or too remote.
Meaning
i. In law, the damage must be direct and the natural result of the consequence of the act of the defendant.
Otherwise, the plaintiff will not succeed. This is In jure non remota causased proxima spectatur (In law the
immediate, not the remote cause of any event that is to be considered). The reason for this is that the defendant
is presumed to have intended the natural consequences, but not the remote damage. It means then that the
defendant's act must be the Causa Causans or the proximate (near) cause.
ii. Novus actus interveniens: (new act intervening)
The act and the consequences are to be connected directly and the defendant will not be liable for Novus actus
interveniens and the consequences thereof.

Scott v. Shepherd (Squib case)

On October 28, 1770, Shepherd (defendant) threw a lighted squib (i.e., a parcel containing gunpowder that was on fire)
into a marketplace. The squib landed near a stand where Yates was selling gingerbread. Willis, afraid of injury and the
damage it would cause to Yates's goods, picked up the squib and threw it across the marketplace. It landed near a stand
owned by Ryal, who was also selling goods. Ryal picked up the squib and threw it again across the market. The squib
struck Scott (plaintiff) in the face and exploded, putting out one of Scott's eyes. Scott brought suit against Shepherd for
trespass and assault. The jury found in favor of Scott.3

This case has become known as the Famous Squib case. The court dismissed the appeal; the injury to the complainant
was the direct and unlawful act of the defendant who originally threw and intended to throw the squib. The other
people were not 'free agents' in this situation and threw on the squib for their own safety and this was justifiable. The
throwing on was classed as a continuation of the defendant's action, which was intended. Whatever followed this was
part of the defendant's original act.
.

In Haynes v. Harwood, the unattended horse van of D started running as some boys had thrown stones at the horse. The
policeman who attempted to stop the horse was injured. Held D liable. The contention that the throwing of stones was
an intervening cause and hence D was not liable was rejected by the court.

Illustration
A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a bicycle breaks her finger, the
bicycle man loses his balance and gets in front of a fuel tanker, the tanker to save the man on the bicycle steers left but
unfortunately hits the railing to a river bridge and falls into it, the lock of the fuel tank breaks and the oil spills into the
river , the driver with the truck drowns.
In the above case:
The girl being hit is the direct damage and it is the direct damage caused by the act of A, the damage caused to the
cyclist is proximately caused by the falling of the girl and is remote to the act of A, the damage caused to the truck driver
and the loss of material(fuel and fuel tank) is remote to the act of A and proximate to the act of the cyclist. And it is to be
noted that the accountability to negligence is made on the assumption that the person is aware of the fact that rash
driving can lead to fatalities. (though the expected and the actual results might not be the same).
.

Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn
somewhere. It would be unacceptably harsh for every tort feasor to be responsible for all the consequences which he
has caused.
General illustration
A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a bicycle breaks her finger, the
bicycle man loses his balance and gets in front of a fuel tanker, the tanker to save the man on the bicycle steers left but
unfortunately hits the railing to a river bridge and falls into it , the lock of the fuel tank breaks and the oil spills into the
river , the driver with the truck drowns.
In the above case:
o the girl being hit is the direct damage and it is the direct damage caused by the act of A
o the damage caused to the cyclist is proximately caused by the falling of the girl and is remote to the act of A
o the damage caused to the truck driver and the loss of material(fuel and fuel tank) is remote to the act of A and
proximate to the act of the cyclist. And it is to be noted that the accountability to negligence is made on the
assumption that the person is aware of the fact that rash driving can lead to fatalities. (though the expected and the
actual results might not be the same).
Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn
somewhere. It would be unacceptably harsh for every tort feasor to be responsible for all the consequences which he
has caused.
Certainly, the question of where to draw the line on recover-ability of consequential losses cannot be answered by a
mathematically precise formula. Judges have used their discretion from time to time, and in that process, two formulas
have been highlighted:
i. The test of reasonable foresight
ii. The test of directness
The Test Of Reasonable Foresight (Doctrine of Reasonable foresight)
If the consequences of a wrongful act could be foreseen by a reasonable man, then they are not too remote. If on the
other hand, a reasonable man could not have foreseen the consequences, then they are too remote. And, an individual
shall be liable only for the consequences which are not too remote i.e. which could be foreseen.
The Wagon Mound Case
For a while, the test of foreseeability lost its popularity to test of directness but it was the case of Overseas Tankship
(UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also popularly known as the Wagon Mound Case that bought it back in the
limelight for jurists.
Facts- The Wagon Mound, an oil-tanker vessel, was chartered by D and had been moved at Sydney (Australia) harbour.
At a distance of about 600 feet, P had a wharf, where repairs of a ship were going on. Due to the negligence of D's
servants, oil spilt from the wagon Mound, spread over to the wharf where P was making some welding operations. P's
manager stopped his welding work, enquired D whether he could safely continue the welding. D assured no danger. P's
manager himself believed that the oil was non-inflammatory on water, and continued welding work. Two days later
molten metal from the wagon Mound fell on cotton waste, ignited and caused a great damage to the wharf and the
equipment.

The Supreme Court held the appellants liable on the precedent of Re Polemis case, but when the matter reached the
Privy Council the judgement of the SC was reversed and Re Polemis case declared an unfit for further rulings.
The Privy Council in England held that D (Wagon Mound) was not liable.
The Court applied the test of reasonable foresight and rejected the direct rule theory. It overruled Re Polemis case. It
said after the event a fool is wise. But, it is not the hind sight of a fool; it is the foresight of a reasonable man which alone
can determine responsibility.

What the reasonable man ought to foresee, corresponds with the common conscience of mankind and hence, the test
of reasonable foresee ability must be applied. Judged from this, it was held not liable. This decision has been approved
in a recent case Hughes v. Lord Advocate (1963).

The Test Of Directness (Directness Test)

According to the test of directness, a person is liable for all the direct consequences of his wrongful act, whether he
could foresee them or not; because consequences which directly follow a wrongful act are not too remote. The test of
reasonable foresight was rejected and the test of directness was considered to be more appropriate by the court of
appeal in Re Polemis and Furness, Withy & Co. Ltd.

In the case of Re Polemis and Furness, Withy & Co. Ltd. Employees of the defendant had been loading cargo into the
underhold of a ship when they negligently dropped a large plank of wood. As it fell, the wood knocked against
something else, which created a spark which served to ignite the surrounding petrol fumes, ultimately resulting in the
substantial destruction of the ship. At first instance (arbitration), it was held that the reasonable unforeseeability of the
outcome meant that the defendant was not liable for the cost of the ship.

Issues: Can a defendant be held liable for outcome of events entirely caused by their (or their agents') actions, but which
could not have been foreseen by either the party in question or any other reasonable party.

Decision/outcome: The Court of Appeal adopted a strict liability approach to causation and assessing liability here and
subsequently held that the defendant was liable for all of the consequences that had resulted from their negligent
actions. The fact that the extent of these consequences was neither subjectively appreciated nor objectively foreseeable
was deemed irrelevant to such a determination.
Notably, this authority would go on to be replaced in the case of Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (The Wagon Mound) (No. 1) [1961] AC 388, however it has never been officially overturned in English
law and theoretically remains 'good case law', despite its lack of application.
.

The first authority for the view advocating the directness test is the case of Smith v. London & South Western Railway
Company, in this case the railway company was negligent in allowing a heap of trimming of hedge and grass near a
railway line during dry weather. Spark from the railway engine set fire to the material. Due to the high wind, the fire was
carried to the plaintiff's cottage which was burnt. The defendant were held liable even though they could not have
foreseen the loss to the cottage.
.

The test of directness has been considered to be incorrect and was rejected by the judicial committee of the privy
council in Overseas tankship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd. (Wagon mound case), an appeal from the New
South Wales and it was held that the test of reasonable foresight is the better test.