Remedies in lort By Jayashree Roy
Remedies for tort are of two kinds:- 1. Judicial - Judicial remedies are those which are awarded by the act of law, viz. (1) awarding of damages; (2) granting of injunction; and (3) restitution of property. 2. Extra Judicial - Extra judicial remedies are those which are available to a party in certain cases of torts by his own acts alone, viz. expulsion of a trespasser, re-entry on land, re-caption of goods, distress damage feasant, abatement of nuisance.
Note- In a tort, besides damages, the court may also grant injunction to the plaintiff to prevent a continuous nuisance. 'Specific restitution of property' is another remedy in tort.
Kinds of Damages: 1. Contemptuous 2. Nominal 3. Ordinary 4. Exemplary
Contemptuous- such damages are awarded when it Is considered that an action should never have been brought. The amount awarded is very trifling. Nominal- when there has been infringement of the plaintiffs legal right but he has suffered no loss thereby (injuria sine damno) the law awards him nominal damages in recognition of his right.
.Ordinary-These are awarded where it is necessary to compensate the plaintiff fairly for the injury he has in fact sustained. It is also called substantial or compensatory damages. Exemplary-When the damages awarded are in excess of the material loss suffered by the plaintiff with a view to prevent similar behaviour in future, the damages are known as exemplary, punitive or vindictive.
Prospective & Continuing Damages Prospective or future damages means compensation for damages which is quite likely result of the dependent wrongful act but which was not actually resulted at the time of decision of the case. Where the cause of action is a continuing one (an action for a continuing trespass)fresh cause of action arises everyday, and it is open to the plaintiff to bring fresh action.
General & Special Damages: General damages are those which the law will imply in every violation of a legal right. They need not be proved by evidence. They arise by inference of law even though no pecuniary loss can be shown. .Special damages are such as the law will not infer from the nature of the act complained of. They must be claimed on the pleadings and proved at the trial. Also known as Express loss, particular damage, damage in fact, etc.
Damages for Personal Injury:- It may cause pecuniary loss or non pecuniary loss. . If there is probable future loss of income by reason of incapacity or diminished capacity of work, damages for the same are also recoverable. .Loss of earnings constitutes an important pecuniary loss for which compensation is allowed .in addition to the damages allowed under various heads, the plaintiff may be allowed interest @ 6% per annum on the damages from the date of his filing the petition or suit till the date of payment of compensation.
Quantum of Compensation:- .Assessment of the value of dependency. How to assess the loss to any dependent in the event of death of a person, and award him compensation which will make good that loss ha:s invariably posed a problem before the courts. 1. Interest Theory 2. Multiplier Theory
Discharge & Waiver of Tort: .Where there is a vested right of action for a tort, such a right can be discharged in the following ways:- (i) Death of either party (ii)Waiver (iii)Accord & Satisfaction iv)Release (v)Acquiescence (vilJudgment Recovered (vii)Statute of Limitation VII
Who cannot be Sued There are certain classes of persons who cannot be sued viz. Foreigrn sovereigns and ambassadors, public officials, the State. .In India, a husband is not liable for the torts of his wife.
Advocate, Calcutta High Court B.Com (Accounts hons.) LL.B (Enrolled Lawyer) Masters of Law (LL.M) Judicial Service Aspirant. Youtuber