LIST OF CASES

1.

Miller v Jackson

2.

Alston v. King, 231 F.3d 383 (7th Cir. Ind. 2000)

3.

Decastro v. Wellston City Sch. Dist. Bd. of Educ., 94 Ohio St. 3d 197 (Ohio 2002)

4.

Spearing v. Whitney-Central Natl Bank, 129 La. 607 (La. 1911)

5.

King Land Co. v. Bowen, 7 Ala. App. 462 (Ala. Ct. App. 1913)

6.

Ortale v. Rowlett, 696 S.W.2d 640 (Tex. App. Dallas 1985)

7.

New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss. 395 (Miss. 1866)

8.

Ciarrocca v. Campbell, 282 Pa. Super. 60 (Pa. Super. Ct. 1980)

9.

Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So. 2d 1183 (Fla. Dist. Ct. App. 5th Dist.

2009)
10.

Jackson v. International Paper Co., 163 So. 2d 362 (La.App. 3 Cir. 1964)

11.

Garfoot v. Avila, 213 Cal. App. 3d 1205 (Cal. App. 5th Dist. 1989)

12.

Sebastian v. Kluttz, 6 N.C. App. 201 (N.C. Ct. App. 1969)

13.

Zok v. State, 903 P.2d 574 (Alaska 1995)

14.

Ross v. Frank W. Dunne Co., 119 Cal. App. 2d 690 (Cal. App. 1953)

15.

Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952)

16.

Ackley v. Strickland, 173 Ga. App. 784 (Ga. Ct. App. 1985)

17.

Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. Okla. 2001)

18.

Hairston v. Atlantic Greyhound Corp., 220 N.C. 642 (N.C. 1942)

19.

Brown v. Smith, 173 Md. App. 459 (Md. Ct. Spec. App. 2007)

20.

Younce v. Baker, 9 Ohio App. 2d 259 (Ohio Ct. App., Montgomery County 1966)

21.

Sterling Drug, Inc. v. Benatar, 99 Cal. App. 2d 393 (Cal. App. 1950)

22.

Campbell v. England, 2005 U.S. Dist. LEXIS 11579 (E.D. La. June 3, 2005)

23.

State Farm Mut. Auto. Ins. Co. v. Campbell 538 U.S. 408 (U.S. 2003)

SUBJECT: TORTSPage 1

INTRODUCTION
A tort, in common law jurisdictions, is a civil wrong1 which unfairly causes someone else to suffer
loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor.
Although crimes may be torts, the cause of legal action is not necessarily a crime as the harm may be
due to negligence which does not amount to criminal negligence. The victim of the harm can recover
their loss as damages in a lawsuit. In order to prevail (win), the plaintiff (person suing) in the lawsuit
must show that the actions or lack of action was the legally recognizable cause of the harm. The
equivalent of tort in civil law jurisdictions is delict.
Legal injuries are not limited to physical injuries and may include emotional, economic, or
reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise
such varied topics as auto accidents, false imprisonment, defamation, product liability, copyright
infringement, and environmental pollution (toxic torts). While many torts are the result of negligence,
tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms
another, and in a few cases (particularly for product liability in the United States) "strict liability"
which allows recovery without the need to demonstrate negligence.
Tort Law Is Different From Criminal Law In That:
1. torts may be created due to negligent but not intentional and criminal actions and
2. tort lawsuits have a lower burden of proof such as preponderance of evidence rather
than beyond a reasonable doubt.
Sometimes a plaintiff may prevail (win) in a tort case even if the person who caused the harm ("the
criminal") was acquitted in a criminal trial. For example, O.J. Simpson was acquitted in criminal court
and later found liable for the tort of wrongful death.
1 Glanville Williams, or grounds for lawsuit. Learning the Law. Eleventh Edition. Stevens. 1982. p. 9
SUBJECT: TORTSPage 2

LEGAL REMEDIES
The main remedy against tortuous loss is compensation in 'damages' or money. In a limited range of
cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense
against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely
threatened, the courts will sometimes grant an injunction, such as in the English case Miller v
Jackson 2. This means a command, for something other than money by the court, such as restraining
the continuance or threat of harm. Usually injunctions will not impose positive obligations on
tortfeasors, but some Australian jurisdictions can make an order for specific performance to ensure
that the defendant carries out their legal obligations, especially in relation to nuisance matters. 3
REMEDIES ARE OF TWO TYPESI.
II.

judicial and
extra-judicial.

Judicial remedy is of three types:

a) Damages,
b) Injunction and
c) Restitution of property

2 (1977)
3 Atiyah PS. (1987). Tort Law and the Alternatives: Some Anglo-American Comparisons. Duke Law
Journal.
SUBJECT: TORTSPage 3

Types of damages a)

Exemplary or Vindictive damages are damages on an increased scale, awarded to the plaintiff

over and above what will barely compensate him for his property loss, where the wrong done to him
was aggravated by circumstances of violence, oppression, malice etc.
b)

Ordinary or Real damages are compensation for general damage. General damages are those

which the law implies in every breach of contract and in every violation of a legal right.
c)

Nominal damages They are awarded for the vindication of a right where no real loss or injury

can be proved.
d)

Contemptuous damages - A very small sum of damages awarded when, although the claimant is

technically entitled to succeed, the court thinks that the action should not have been brought.
Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to
do or refrain from doing a particular thing. Law as to the injunction is contained in the Specific Relief
Act 1963 and the CPC 1908.
Types of injunction
(i)

Mandatory When, to prevent the breach of an obligation, it is necessary to compel the

performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach
(s. 55 of the Specific Relief Act, 1877).
(ii) Permanent or perpetual By perpetual injunction a defendant is perpetually enjoined from the
assertion of a right, or from the commission of an act, which would be contrary to the rights of the
plaintiff (s. 53, the Specific Relief Act, 1877).
(iii) Temporary Temporary injunction is such as is to continue until a specified time, or until the
further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order
XXXIX Rule 1.
(iv) Ad-interim - Restitution of property Restitution means restoration of anything to its rightful
owner.
SUBJECT: TORTSPage 4

EXTRA-JUDICIAL REMEDIES AREi)

Self defence The use of force to protect oneself, ones family, or ones property from a real or

threatened attack.
ii)

Expulsion of trespassers Forcibly evicting the trespasser.

iii) Reception of chattels Chattel means movable or transferable property; personal property.
iv) Re-entry of land
v)

Abatement of nuisance Abatement is the act of eliminating or nullifying; the act of lessening

or moderating.
vi) Distress damage feasant the right to seize animals or inanimate chattels that are damaging or
encumbering land and to keep them as security until the owner pays compensation.

DAMAGES
In contract and tort law, courts award damages to a plaintiff to compensate the civil wrong committed
to him/her by the defendant. In contract law, damages amount to the loss incurred because of breach
of a contract by a defendant. However, in tort law, damages are more difficult to assess. The
fundamental principle 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, insofar as this can be done by the payment of money (Livingstone v
SUBJECT: TORTSPage 5

Rawyards Coal Co (1880) 5 App Cas 25, 39). Damages are calculated by representing in economic
terms a plaintiffs loss or injury to property, person, and quality of life 4.
The purpose of damages is to restore an injured party to the position the party was in before being
harmed. The nature and extent of the harm, and substantial evidence produced by plaintiffs are taken
into consideration by the jury before awarding damages. Damages are divided into different
categories based on the type of recovery such as:
A. Compensatory damages: This type of damages provides a plaintiff with an amount that is
necessary to replace a loss or compensate an injury. Compensatory damages are issued only
to the limit of loss and not more.
B. Future damages: This type of damages is provided only when there is a reasonable
apprehension of a loss or injury in the future because of a negligent or malicious act or
omission of a defendant. However, there should be a satisfactory basis to award future
damages.
C. Incidental damages: Incidental damages are awarded to a plaintiff when certain expenses
that are incidental to the loss or damage. The expenses should be incidental to the loss and
should be reasonable.
D. Punitive damages: This category of damages is awarded against a wrong-doer for his/her
negligent, malicious act, or omission that causes grievous damage to another. Punitive
damages also act as a deterrent to others who tend to act in a similar manner. The amount of
punitive damages to be awarded lies within the discretion of the jury or judge based on the
extent of plaintiffs injury and the wrong-doers behaviour.
E. Nominal damages are awarded to an individual in an action when the individual suffers no
substantial injury or loss that is to be compensated. In such actions a plaintiffs rights are
violated by a defendants wrongful conduct or breach of a legal duty 5. However, when the
nature and extent of the injury is minimum, nominal damages are only awarded.

4 Alston v. King, 231 F.3d 383 (7th Cir. Ind. 2000)

5 Decastro v. Wellston City Sch. Dist. Bd. of Educ., 94 Ohio St. 3d 197 (Ohio 2002)
SUBJECT: TORTSPage 6

F. Temperate damages or moderate damages are more than nominal damages. For awarding
temperate damages, courts should be convinced that there was a breach of legal duty by the
defendant, but when the loss suffered by the plaintiff cannot be deduced with clarity6.

Compensatory damages
Compensatory damages are paid to a plaintiff to compensate for the loss and injury incurred. General
damages compensate a claimant for the non-monetary aspects of the specific harm suffered 7. This is
usually termed pain, suffering, loss of consortium, loss of earning, mental anguish, and loss of
amenity. Mostly, general damages are awarded to individuals in actions for compensation in personal
injury. Special damages are awarded to claimants for compensating monetary loss 8. Such damages
6 Spearing v. Whitney-Central Natl Bank, 129 La. 607 (La. 1911)
7 King Land Co. v. Bowen, 7 Ala. App. 462 (Ala. Ct. App. 1913)
8 Ortale v. Rowlett, 696 S.W.2d 640 (Tex. App. Dallas 1985)
SUBJECT: TORTSPage 7

are provided in personal and commercial actions. The loss of irreplaceable items, car rentals, medical
expenses and repair or replacements of damaged property are included under special damage.
Compensatory damages are awarded to claimants when there is a breach of contract and there is
substantial evidence of the breach. A jury considers the economic losses due to loss of future profits
and loss of opportunity suffered by the plaintiff before awarding damages. The assets of the
defendant are also taken into consideration by the jury before calculating the amount to be awarded as
compensation.
In tort cases, compensatory damages can be awarded in personal injury cases and when there is injury
to personal rights and property rights. The measure of compensatory damages must be real and
tangible. However, fixing an amount as damages is not an easy task for the jury when damages are
sought for emotional distress and pain and suffering.
A plaintiff can recover for a number of different injuries suffered as a result of another persons
wrongful conduct. Compensatory damages can be awarded for cost of medical expenses and
treatment, cost of living with a disability, loss of wages and earning capacity 9, cost of replacement or
repair of property, funeral expenses, pain and suffering resulting from an injury 10, loss of consortium
of spouse or parents11, mental anguish12, emotional distress, loss of enjoyment of life, loss of
opportunity, and physical disablement and deformity.
A jury takes into consideration certain factors before awarding damages in contract and tort actions.
In tort actions, the victims age, earning capacity prior to the accident, mental and physical health,
habits, nature and extent of the injuries, suffering of the victim and the period of suffering, loss of
9 New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss. 395 (Miss. 1866)
10 Ciarrocca v. Campbell, 282 Pa. Super. 60 (Pa. Super. Ct. 1980)
11 Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So. 2d 1183 (Fla. Dist. Ct. App. 5th Dist.
2009)
12 Jackson v. International Paper Co., 163 So. 2d 362 (La.App. 3 Cir. 1964)
SUBJECT: TORTSPage 8

income, impact of the injury on victims life style are all considered by the decision makers before
calculating the compensation for personal injuries in economical terms 13. However, in contract and
tort cases, the jury depends on the substantial evidence provided by a plaintiff on the loss suffered by
the plaintiff because of the injury caused by defendants negligence or breach of legal duty. 14

Nominal Damages
An award of nominal damages is a significant legal right. Courts use the term nominal damages to
describe two types of awards such as:
i.

a trifling or token allowance for a technical invasion of a plaintiffs rights or a breach of a

legal duty when no actual injury is shown, or

13 Garfoot v. Avila, 213 Cal. App. 3d 1205 (Cal. App. 5th Dist. 1989)
14 Sebastian v. Kluttz, 6 N.C. App. 201 (N.C. Ct. App. 1969)
SUBJECT: TORTSPage 9

ii.

the very different allowance made when actual loss or injury is shown, but plaintiff has
failed to prove the extent and amount of damages 15.

Nominal damages are presumed to follow as a conclusion of law once a breach of contract has been
proven. Generally, the rule as to the measure of damages for breach of contract is the actual loss
sustained16. The term nominal damages means a trivial sum awarded to a plaintiff whose legal right
has been technically violated17. Nominal damages constitute a subcategory of general damages.
General damages are those which the law presumes to flow from a tortious act. General damages
may be awarded without proof of any specific amount to compensate the claimant for the injury done.
The law infers some damage from the invasion of a property right. If no evidence is given showing
any particular amount of loss, the law declares the right by awarding what it terms nominal damages.
Therefore, a plaintiffs right to recover nominal damages depends only upon whether the defendants
liability has been established18.
Nominal damages are appropriate only when plaintiffs are unable to prove any amount of damages
and are not properly awarded when a plaintiff has established a quantifiable loss of revenue 19.
Nominal damages are a token award, compensatory in nature 20. Nominal damages are recoverable
where some legal right has been infringed, but no actual loss or substantial injury has been sustained.
Nominal damages are awarded in recognition of the right and of the technical injury resulting from its

15 Zok v. State, 903 P.2d 574 (Alaska 1995)

16 Ross v. Frank W. Dunne Co., 119 Cal. App. 2d 690 (Cal. App. 1953)
17 Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952)
18 Ackley v. Strickland, 173 Ga. App. 784 (Ga. Ct. App. 1985)
19 In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144 (3d Cir. Pa. 1993)
20 Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. Okla. 2001)
SUBJECT: TORTSPage 10

violation. They have been described as a peg on which to hang the costs. It is a small trivial sum
awarded in recognition of a technical injury which has caused no substantial damage 21.
Nominal damages are not compensation for loss or injury. It is the recognition of a violation of rights.
In the absence of authority limiting an award of nominal damages, the nature of nominal damages
compels that the amount be minimal 22. Nominal damages are not equivalent to damages small in
amount23. Nominal damages are not only recovered where no actual damage resulted from an
ascertained violation of right but also where actual damages have been sustained, the extent of which
cannot be determined24.
To recover damages for an emotional injury greater than nominal damages, a plaintiff must present
evidence of an emotional injurys character and severity. It requires specific evidence of the nature
and extent of the harm. However, in certain cases, a plaintiffs testimony may be sufficient proof of
mental damages25.

21Hairston v. Atlantic Greyhound Corp., 220 N.C. 642 (N.C. 1942)

22 Brown v. Smith, 173 Md. App. 459 (Md. Ct. Spec. App. 2007)
23 Younce v. Baker, 9 Ohio App. 2d 259 (Ohio Ct. App., Montgomery County 1966)
24 Sterling Drug, Inc. v. Benatar, 99 Cal. App. 2d 393 (Cal. App. 1950)
25Campbell v. England, 2005 U.S. Dist. LEXIS 11579 (E.D. La. June 3, 2005)
SUBJECT: TORTSPage 11

Punitive damages
Punitive Damages are damages awarded as a punishment to the wrong doer/defaulter. Its purpose is
not to compensate the plaintiff. However, s/he may be entitled to all or a portion of the damages.
Courts may impose punitive damages if it feels that compensation damages are inadequate or to avoid
under-compensation of plaintiffs. Punitive damages are mostly awarded in tort cases and not in cases
over contractual obligations. However, if an independent tort is committed in a contractual setting,
punitive damages can be awarded for the tort.
Laws regarding punitive damages vary from state to state. In most of the states, punitive damages are
awarded if the tort was committed with the intent to harm and not caused by mere negligence. There
is no limit to the amount that a party may be ordered to pay as punitive damages.
Damages for mental suffering are compensatory in nature. However, in cases challenging insult,
indignity and similar issues, punitive damages may be ordered by courts.
In State Farm Mut. Auto. Ins. Co. v. Campbell26 , respondent insureds sued petitioner insurer,
alleging that the insurers refusal to settle meritorious claims against the insureds constituted bad
faith, fraud, and intentional infliction of emotional distress. The insureds contended that the
substantial punitive damages award was justified in view of the insurers national scheme to meet
corporate fiscal goals by capping claim payments and engaging in fraudulent practices. The insurer
argued that the ratio of punitive damages to compensatory damages clearly indicated that the punitive
damages award was excessive and unrelated to the actual harm suffered by the insureds. The U.S.
Supreme Court held that the punitive damages award was neither reasonable nor proportionate to the

26 538 U.S. 408 (U.S. 2003)

SUBJECT: TORTSPage 12

wrong committed, and it was thus an irrational, arbitrary, and unconstitutional deprivation of the
property of the insurer. While deciding the case, the court held that courts reviewing punitive
damages must consider three guideposts:

a) the degree of reprehensibility of the defendants misconduct;

b) the disparity between the actual or potential harm suffered by the plaintiff and the punitive
damages award; and
c) the difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.

SUBJECT: TORTSPage 13

SPECIAL DAMAGES
Damages that are specific to the injury or wrong committed are termed special damages. These are
different from general damages, which also flow from the injury but are not as easily calculable. If
a person has medical expenses, the special damages will be all the costs of treatment, loss of income
or other losses.
The term special damages produces uncertainty depending on the jurisdiction and context in which
it is invoked. Special damages are sought in lawsuits based on contract and tort. Special damages are
requested in addition to general damages. Special damages and general damages are classified as
compensatory damages. They are designed to return persons to the position they were in prior to the
alleged injury. Special damages are based on measurable dollar amounts of actual loss, while general
damages are for intangible losses that can be inferred from special damages as well as other facts
surrounding the case. In tort actions, special damages are damages that are reduced to a sum certain
before trial.
However, the definitions of special and general damages are reversed in contractual disputes. General
damages in contract would include:

the difference between contract and market prices,

the difference between the value of the goods as delivered and as warranted, and

Interest on money that has been wrongfully withheld.

SUBJECT: TORTSPage 14

Special damages would include all other damages. In contract, special damages and consequential
damages are virtually interchangeable. Therefore, the losses flowing out of the breached contract
could be compensated through special damages. However, it is common for sellers to require buyers
to sign a contract excluding the recovery of special or consequential damages. Sometimes, when the
state or a private person violates a persons rights, special damages are described in statutes.

SUBJECT: TORTSPage 15