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Unit 5

Remedies in Torts
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

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

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

Now, let us discuss judicial remedies in some detail;


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 de-boarded
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.
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).
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 granted. The 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:
➢ 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.
➢ 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.
➢ When the property in dispute is in danger of being damaged or wasted by either of the
parties.
➢ 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.
➢ 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.
➢ In cases of trademark, copyright infringement, etc.

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 injunction.The
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 section 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”.
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
It refers to the requirement that the damage as a consequence of a breach of duty must not be
too remote from the initial act of negligence i.e. the damage arising from the risk involved in
the negligent act must be foreseeable. There would be manifest injustice if a person were held
responsible for all consequences of his act which in theory may be endless.
Wagon Mound No. 1:
In Oversees Tankship v. Morts Dock & Engineering Co., Ltd., (also known as Wagon
Mound No. 1) the defendants negligently caused oil to spill from the Wagon Mound into the
port of Sydney. The oil spread to the Plaintiff’s wharf where another ship was undergoing
welding operations for repair, in the course of which a drop of molten metal fell on the oil
setting it on fire and thus destroying the wharf. The trial Judge observed that the destruction
of the wharf by fire was a direct but unforeseeable consequence. Hence the defendant was not
held liable.
In The Wagon Mound, The Judicial Committee of the Privy Council expressed its
disapproval of Re Polemis and refused to follow it- “it does not seem consonant with current
ideas of justice or morality that for an act of negligence, however slight or venial, which
results in some trivial foreseeable damage, the actor should be liable for all consequences
however unforeseeable and however grave, so long as they can be said to be direct.”
Foreseeability is a precondition of a finding of negligence– a person cannot be liable of
failing to take precautions against an unforeseeable risk. Foreseeability is relevant to
answering the question of whether the reasonable person would have taken any precautions at
all against the risk and, hence whether the defendant can reasonably be expected to have
taken any precautions.

Wagon Mound No. 2


The facts of this case were the same as in Wagon Mound (No. 1) except that in No. 1 the
plaintiff was the owner of the wharf but in No. 2 the plaintiffs were the owners of the ships,
which were being repaired and were damaged by fire. The decision was, however, different
in Wagon Mound (No. 2). This was mainly due to difference in the evidence adduced in the
two cases and the findings of facts. In No. 1 it was found that the consequences were not at
all foreseeable but in No. 2. Walsh, J., found; (1) that the officers of Wagon Mound would
have regarded the furnace oil as very difficult to ignite on water —not that they would have
regarded this as impossible; (2) that their experience would probably have been that this had
very rarely happened—not that they would never have heard of a case where it had happened;
and (3) that they would have regarded it as a possibility but one which would become an
actuality only in very exceptional circumstances. The conclusion, which he reached in his
finding No. 5, was that the damage was not reasonably foreseeable by those for whose acts
the defendants would have been responsible. It is the findings Nos. 1 to 3 above which led to
a different result in this case and this is really a novel application of the foreseeability test.
In Oehler v. Davis, a dog collar manufacturer sold a defective dog collar. The collar broke,
allowing the dog to escape its owner and bite someone. The court decided that the plaintiff
had no cause of action against the dog collar manufacturer, because the harm was too remote.
In Lewis v. Kehoe- Academy, a day care centre negligently allowed a child to consume
poison. Relatives who had custody of the child lost custody because bruises formed by the
poisoning were mistaken as marks of child abuse. The relatives sued the day care centre
alleging extreme mental anguish for the loss of companionship of the child. The relatives’
claim was dismissed as it was too remote.
In Hughes v. Lord Advocate, employees of the Post Office opened a manhole and left it
unattended in the evening, covered by a canvas shelter and surrounded by paraffin lamps. The
claimant, an eight year old boy, took one of the lamps into the shelter and was playing with it
when he stumbled and it fell into the manhole. There was a violent explosion due to which
the claimant himself fell into the manhole and sustained severe burn injuries. It was
unforeseeable that the lamp would explode, but the Post Office men were in breach of duty
because they left the manhole unattended and did not consider that little boys might play with
the lamps and sustain burns. Hence the defendants were held liable.
In Jolley v. Sutton London Borough, The defendant, Sutton London Borough Council,
negligently left a dangerously derelict boat abandoned on a beach that they owned, although
they had placed a warning sign on the boat advising that it should not be touched. Whilst the
warning notice stated that the owner of the boat had one week within which to move the boat
or have it removed by the Council, the defendant did not follow up on this. Two teenage boys
then tried to restore it, which included attempting to alter its position over several visits. The
boat then fell on one of the boys, causing severe injuries, including paraplegia. The
defendants were held liable, as children often found “unexpected ways of doing mischief to
themselves and others.”
Foreseeability is a relative, not an absolute concept. The test of foreseeability is satisfied if
the damage suffered is similar in kind though different in degree and that the precise
sequence of events or extent of the damage need not be foreseeable: but if the damage
suffered is altogether different in kind, the test of foreseeability is not satisfied, and the
plaintiff cannot recover.
Extent of The Damage:
When the damage is foreseeable, the defendant cannot plead that the claimant was earning
more than the average victim, or that the goods were exceptionally valuable. Damages are not
restricted to the average loss of earnings or average value of goods in the circumstances, even
supposing that such a sum is calculable. The extent and limitations are showcased
in Liesbosch
(Dredger) v. Edison C’s dredger, the Liesbosch, was sunk owing to the negligence of D. C’s
poverty prevented them from buying a replacement immediately, and so, to fulfil an existing
contract, they had to hire another dredger at a rather high rate. The House of Lords refused to
award compensation to the claimant because the cost of hiring a replacement dredger was
considerably higher than the additional cost of buying a dredger. The additional loss was held
to result from an extraneous cause- the claimant’s poverty.[12]

Scope of Liability Limited by Scope of Duty of Care:


The House of Lords has reiterated that in order to determine the scope of defendant’s liability
for the damages arising out of his act, it is necessary to understand the nature of the loss
against which the legal rule in question is designed.
In Kuwait Airways Corp v. Iraq Airways Co., Lord Hoffman said, “One cannot separate
questions of liability from questions of causation. They are inextricably connected. One is
never simply liable, one is always liable for something and the rules which determine what
one is liable for are as much part of the substantive law as the rules which determine which
acts give rise to liability.”[14] As per Lord Hobhouse, it is “the scope of the tort which
determines the extent of the remedy to which the injured party is entitled.”[15]

Intended Consequences:
If there is mens rea on the part of the defendant or if he is an intentional tort- feasor, then no
question of remoteness of damage arises out of the initial wrong. The liability of an
intentional wrongdoer is not limited to the intended consequences and it will extend at least
to such as are foreseeable. In Scott v. Shepherd, when the defendant threw a squib into the
crowd and it ultimately falls on the plaintiff and puts out his eye, the defendant was held
liable to the plaintiff, although it was not his intention to put out his eye. The law insists
rightly that fools and mischievous persons must be liable for consequences which common
sense would unhesitatingly attribute to their wrongdoing.
Extensive causal liability may also be achieved indirectly by the doctrine of transferred
intent, which arose from the tort of battery. One of the first cases in which this doctrine was
applied was Talmage v. Smith, where defendant was held liable when he intended to hit A
with a stick but instead struck B. Foreseeability is not a factor limiting this doctrine. This can
be seen in Lambert v. Brewster, wherein the defendant fought the plaintiff’s father, not
knowing they were being watched by the plaintiff, who subsequently suffered a miscarriage.
The defendant was held liable, since he intended to cause battery to a third party, but in the
process created emotional disturbance to the plaintiff and thus bore extended liability of
having caused a miscarriage.
Extensive liability can be traced back to the historical background of intentional torts.
Originally penal in character, some part of their punitive nature survived the transformation
into civil actions.
The Egg-Shell Skull Principle:
This principle embodies the statement that a defendant must take his victim as he finds him.
It is no answer to the claim of the defendant that the plaintiff would have suffered less injury
“if he had not unusually thin skull or an unusually weak heart.” In Smith v. Leech Brain &
Co Ltd, where the negligence of the defendants caused a burn on a workman’s lip, which
promoted cancer in the site of the burn resulting in his death, the defendants were held liable,
because but for the burn, the cancer might never have developed, though there was a pre-
malignant condition.
Generally, the defendant owes a duty to guard only those of ordinary strength and fortitude,
and where he cannot see any foreseeability of injury, no duty is owed. For example, if
nervous shock is not a foreseeable result of any action, then a person having a nervous shock
will not get a remedy. But once the duty is owed the defendant must take his victim as he
finds him, so that if more extensive damage occurs due to some pre-existing circumstances,
the defendant is fully liable.
In Jenson v. Eveleth Taconite Co, the 8th U.S. Circuit Court of Appeals held that the doctrine
of the Eggshell Skull will apply even if plaintiffs’ fragile emotional psyches makes them
predisposed to greater psychological harm from sexual harassment. The defendant, a mining
company, had claimed that the emotional depravity of multiple plaintiffs was a result of a
pre-existing condition. The evidence did not support the allegation. Once the facts of the case
were determined, the court held that the defendant had to take its victims as they are, even if
they have eggshell psyches.

Intervening Acts or Events; Novus Actus Interveniens:


Damage suffered by the plaintiff after the chain of subsequent causes initiated by the
wrongful act of the defendant gets broken is too remote and does not make the plaintiff
entitled to an award of damages against the plaintiff. The chain of causation may break due to
human conduct or natural event.
In Weld Blundell v. Stephens, the defendant had negligently leaked some documents to a
third party, which contained libellous statements made by the claimant about the third party.
The third party sued the claimant on libel and won. Later, the claimant sued the defendant,
demanding recovery of damages. It was held that the claimant was not entitled to damages,
because the libellous statements were intentional and had broken the chain of causation.
In Canadian Pacific Ry. Co. V. Kelvin Shipping Co. Ltd., the respondent’s steamship was so
badly damaged by the appellant’s steamship that it was decided to beach her in position 1.
She then drifted into position 2 on the south bank along the fairway of the river. She then
slipped into position 3, thus increasing the cost of salvage. The appellants accepted initial
liability of the damage, but claimed that the damage had risen due to subsequent negligence
on the part of the respondent. The point of issue was whether the respondents were negligent
in not using the engine in position 1. On this point, Lord Haldane said (p. 370) “the burden of
showing that the chain of causation started by the initial injury has been broken lies on the
defenders. In order to discharge this burden they must prove that the breach in the chain was
due to unwarrantable action, and not merely to action on an erroneous opinion by people who
have bona fide made a mistake while trying to do their best, which is all that is shown to have
happened in the present case.”
In Wieland v. Cyril Lord Carpets Ltd, the plaintiff injured her neck due to the negligence of
the defendant and was forced to wear an orthopaedic collar. Due to the position of her neck in
the collar, the plaintiff was unable to automatically adjust her vision to the bi-focal lenses that
she had worn for 10 years. Shortly after the collar was fitted, the plaintiff fell down while
descending the staircase and injured her ankles. The defendants were held liable for both the
initial injury and the subsequent injury incurred in the fall. The decision is a clear example of
the provision that since Wagon Mound No. 1, the novus actus interveniens is but an aspect of
the general problem of remoteness of damage and will break the chain of causation only if it
is not a reasonably foreseeable event.
Test of Remoteness in India:
The English Law of Tort, introduced in India as an instrument of justice and equity, was
applied keeping in mind the special conditions of the cases in the country. Most judges have
agreed with the test of foreseeability established by the Wagon Mound Case.
In Municipal Board, Kheri v. Ram Bharosey, where the Municipal Board of Kheri granted a
license to build a flour mill next to the defendant’s house, as a consequence of which his
house was severely damaged to the vibrations produced by the mill, the Allahabad High
Court held that the Municipal Board was not liable, because the damage did not arise as a
direct consequence of granting of license. The court laid down the following tests of
remoteness:

1. “Consequences that are intended by the wrongdoer will not be too remote. This includes
reckless indifference to consequences which may thereby, be deemed to have been
intended;
2. Consequences that are reasonable and probable and which, therefore, might have been
foreseen are not to remote;
3. Consequences which are the direct result of an unlawful act or omission are not too
remote although they could not reasonably have been foreseen.”
CONSTITUTIONAL REMEDIES

➢ Article 32 and 226 of the constitution- Provides for writ jurisdiction to the High
Courts and the Supreme Court of India. Can seek remedy if mainly any
fundamental right is infringed or any other rights provided under the constitution.
➢ Powers provided are no not merely injunctive/preventive but also remedial.
➢ Compensation only awarded in exceptional cases. Infringement of fundamental
rights should be gross and ex facie glaring, affecting fundamental rights of large
number of people, unjust, unduly harsh and oppressive.
➢ Somebody, other than the victim, can approach the court to seek remedy.
➢ Case law- Bhim Singh