Judicial and Extra-judicial remedies under law of Torts
To understand the concept of remedies under tortious liability, let us first understand the meaning of tortious liability. Tortious liability is the process through which the wrongdoer is held liable for the wrong committed by him, and is required to reimburse the plaintiff. The word “remedies” means the cure for some harm that have been caused. In law of torts, remedies refer to legal remedy. When there is infringement of someone’s legal right, the law provides for some treatment to this. This treatment is termed as legal remedy. There are two broad types of remedies provided by law: judicial remedies and extra-judicial remedies.
Judicial remedies are the type of remedies that provided to the aggrieved party by the court. Hence the name, judicial remedies. Judicial remedies are usually provided through three ways: damages, injunction, specific restitution of property. Let us discuss each of these one by one.
Damages may rise to almost any amount, or they may dwindle down to being merely nominal. Damages are defined as the compensation price paid to the damages caused to the plaintiff. The law has not laid down what shall be the measure of damages in actions of tort; the measure is vague and uncertain depending upon a vast variety of causes, facts, and circumstances. The common law says that the damages due to either for breach of contract or tort, are damages for which so far as money can compensate, will give the injured party reparation for the wrongful act. If there must be any special damage which is attributable to the wrongful act that special damage must be averred and proved. There are four kinds of damages: (1) contemptuous; (2) nominal; (3) ordinary; (4) exemplary damages.
- Contemptuous damages: contemptuous damages are awarded when it is considered that an action should never have been brought. When the plaintiff has technically a legal claim but there is no moral justification for it or he morally deserved what the defendant did to him, the court may award a half penny or a paisa showing its disapproval of the conduct of the plaintiff.
- Nominal damages: nominal damages are awarded where the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, for example, in cases of infringement of absolute rights of personal security ( example: assault) and property ( example: trespass, invasion of a right of easement, etc.). Nominal damages are called so because they bear no relation even to the cost and trouble of suing, the sum awarded is small.
- Ordinary damages: ordinary damages are awarded where it is necessary to compensate the plaintiff for the injury in fact he has sustained. These are also called compensatory damages.
- Exemplary damages: exemplary damages are awarded not to compensate the plaintiff but to punish the defendant and to deter him from doing similar conduct in the future.
An injunction is an order restraining the commission, repetition and continuance of a wrongful act of the defendant. To entitle a party to an injunction he must prove either damage or apprehend damage. An injunction may be granted to prevent waste, trespass, or continuance of nuisance to dwelling pr business houses, etc. The right to an injunction is governed in India by the Specific Relief Act, 1963.
3. Specific Restitution of property:
A person who is wrongfully disposed of immovable property, or of movable property is entitled to recover the immovable or movable property, as the case may be. A case of restitution can be made out if it proved that a benefit has been either conferred or received and the same is unjust, constituting unjust enrichment.
There are certain remedies which are adopted by the parties themselves for the redressal of the grievances caused to them.
Expulsion of trespasser:
- A trespasser can be turned off by owner before he has gained possession and he does not gain possession until there is acquiescence in the physical fact of his occupation by the owner. This rule applies to squatters also who say that they are homeless. An occupier is entitled to expel a trespasser and if necessary, even forcibly remove him from the premises. The law allows a person to resort to a reasonable degree of force for the protection of himself or any other person against an unlawful use of force.
Re-entry on land:
- The owner of the property can remove the trespasser and re-enter his property. The owner can only do this using reasonable amount of force.
Re-caption of goods:
- Re-caption of goods is defined as the process by which the owner of goods specifically regains the physical possession of his property. This is significantly different from specific restitution of property because it is not enforced by law. The owner takes matters in his own hands and gets his property back.
- Abatement nuisance is the concept in which the party who has suffered nuisance, takes the matters in his hands and removes the nuisance without any legal proceedings.
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’.”
These are case laws.
Author: Vaishnavi Makne,
Symbiosis Law School, Nagpur