Remedies which are available to an aggrieved person in Tort

In the law of torts the remedies available to the injured person can be divided into two heads: (1) Judicial, and (II) Extra-judicial.

(I) Judicial Remedies

Judicial remedies are remedies by way of action at law. The injured party may institute a suit in a Court of law and obtain redress. The remedies obtainable for a tort by means of an action at law are mainly of three kinds :

(A) Damages -Award of damages is an ordinary and essential remedy for a tort. In fact, it is available in all cases of tort because tort is a civil injury for which the remedy is by way of an action of damages. The object of awarding damages is to place the injured party, so far as money can do it, in the position which he would have occupied; if the wrong had not been committed. This idea is not so much restitution as compensation because restitution in the real sense is rarely possible.

Damages represent the pecuniary recompense recoverable by process of law, by a person who has sustained an injury through the wrongful act or omission of another. In considering the legal import of the term ‘damage it is, however, necessary to bear in mind that it is the injury for which pecuniary compensation is awarded to an action at law, which may have been caused by the defendant, or by anyone for whose acts or omissions the law holds the defendant responsible, and that injury complained of any be the result of a breach of contract, or tort.

The damages and compensation are, however, not the same thing. the distinguishing feature between them is that the ‘damage’ is used in reference to pecuniary recompense awarded in reparation for a loss of injury caused by a wrongful act or omission, the term ‘compensation’ is used in relation to a lawful act which caused the injury in respect of which an indemnity is obtained under the provisions of a particular statute. The expression “compensation” is no ordinarily used as equivalent to damages, it is used in relation to a lawful act which has caused injury. The word, therefore, does not include damges at large.

General and special damages. – Damages are distinguishable as being either general or special. General damages are such as the law will presume to be the natural consequences of the defendant’s acts. Special damages are such as the law will not infer, unless proved at the trial Thus distinction relates principally to the law of pleadings and procedure, rather than to the substantive law. General damage need not be expressly set out in the plaintiff’s pleadings. Special damage, on the contrary, is of such a kind that it will not be presumed by the law, and must, therefore, be expressly alleged in the pleadings, so that the defendant may have due notice of the nature of the claim otherwise the plaintiff will not be permitted to give evidence of it. Thus, in an action for false imprisonment, e.g., general damages are recoverable for inconvenience, indignity and discomfort for the law presumes them, and the defendant will not be heard to say that, in fact, none has suffered. But if the plaintiff has by imprisonment incurred medical expenses or paid fee to his lawyer, or has suffered any specific pecuniary loss such as loss of wages, this is special damage, which must be expressly alleged and proved, otherwise compensation cannot be recovered in respect of it. The Court is entitled to take into consideration as special the fact that the plaintiff’s normal expectation of life has been materially shortened by the injury caused by the defendant’s negligence.

In Veeran v. Krishana Murthy, where a child was injured by negligent driving of a bus. Court allowed medical expenses for the child’s treatment as general damages. Damages for mother’s nervous shock were allowed as special damages.

In this sense ‘special damage’ refers to loss which is capable of substantially exact pecuniary assessment, it thus includes any loss of earnings suffered by the plaintiff which has accrued by the date of trial. It also includes such other items as legal expenses, loss of pension rights, reduction of prospects of marriage and even the consequent inability to pursue one’s hobby, etc, General damages, on the other hand, may be said to refer to non-pecuniary loss such as pain and suffering, loss of expectation of life, loss of amenity, the injury itself, etc.’

Measure of damages. – In considering the measure of damages the leading principle should be restitutio in integrum. “Where any injury is to be compensated by damages in settling the sum of money which will put the party who has been injured, or who has suffered in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation. The court takes into consideration the various aspects of harm cause to the plaintiff, e.g., the injury itself, harm and suffering, loss of expectation of life, loss of amenity, etc.

In the property damage cases, the measure of damages will be the diminution in value of the property at the time when the wrong was done but other formula may be adopted where the justice of the case demands. Thus, the cost of repair may be awarded even though it exceeds the diminution in value where it is reasonable.

Kinds of damages

There are four kinds of damages;

(i) Contemptuous damages. – Contemptuous damages are awarded by the Court when it is considered that action should never have been brought. They are an indication of the law court expressing an opinion of the claim of the plaintiff or its disapproval of his conduct in the matter. They differ from nominal damages as they may be awarded for any tortious act whether actionable per se or not. Recently in Bhim Singh v. State of J. & K., the Supreme Court awarded exemplary damages when there was wrongful detention. In the case Bhim Singh a member of Legislative Assembly was arrested when he was going to attend Assembly Session. Supreme Court considered it to be an appropriate case for awarding exemplary damages.

(ii) Nominal damages. – Nominal damages are awarded by the Court to the plaintiff not by way of compensation but by way of recognition of some legal right of plaintiff which the defendant has infringed, e.g., trespass, assault. avasions of a right of easement, etc.

In Ashby v. White, it was held that an elector had a right of action against a Returning Officer who wrongfully and maliciously rejected his vote at an election even though the candidate for whom he intended to vote was elected. It is thus obvious that nominal damages are awarded only in the cases of such torts as are actionable per se.

(iii) Real or substantial damages. – Real or substantial damages are those which are assessed an awarded as compensation for damage actually suffered by the plaintiff, and not simply by way of mere recognition of a legal right violated. They are a sum of money which is awarded to the plaintiff as a fair and equitable compensation for the injury suffered by him. They are also called ordinary or compensatory damages. Such damages are awarded in a great majority of actions in tort, such as, an assessed as nearly as possible at sum of money which would put the injured party in the same position as he would have been in, if he would not have sustained the injury.

(iv) Compensatory and exemplary damages.-Compensatory damages are awarded as compensation for, and are measured by, material loss suffered by the plaintiff. Exemplary damages are awarded where there has been great injury by reason of aggravating circumstances accompanying the wrong. A heavy amount is awarded as an expression of indignation at the conduct of the defendant whenever he has shown a contumelious disregard of the plaintiff;s right. A malicious motive, an arrogant or insolent manner are things would justify exemplary damages being given by judges or jury. Thus, exemplary damages may be obtained in case of seduction of a man’s daughter with deliberate fraud, or of gross defamation actuated by sheer spite, a wantor trespass of land persisted in with violent and indisciplined behaviour, or assault and false imprisonment under colour of a pretended right. The object of awarding exemplary damages is to deter other persons from the commission of a similar act. Such damages are sometimes also known as ‘vindictive’ or ‘punitive’ damages.

In Common Cause a Registered Society v. Union of India, the Supreme Court held, that State is also entitled to recover from public servant exemplary damages, for oppressive, arbitrary and unconstitutional action in disposal of public property.

(v) Prospective damages. – Prospective or future damage are those which are likely to result from the wrongful act of the defendant but they  have not actually resulted at the time when the damages are being decided by the Court. The point can be illustrated by the case of Subhas Chandra v. Ram Singh. In this case the appellant was hit by a bus driver by the respondent. He suffered several injuries resulting in his permanent disability to walk without a surgical shoe. Because of the disability he could not take employment in certain avenues. The Motor Claims Tribunal awarded him compensation amounting to Rs. 3,000 under the heading ‘probable further loss’. The amount of compensation on appeal was increased to Rs. 7,000 by the Delhi High Court.

Measure of damages. – By the term ‘measures of damages’ is meant, the standard or method of calculation by which the amount of damages is to be assessed and the onus lies on the plaintiff to produce the best evidence he can to prove damages.

In calculating damages to which the plaintiff is entitled to in respect of an injury the Court has to take into account as to what would be the particular sum which will make good the loss suffered by the sufferer, so far as money can do it, and will try to make good the loss suffered by the sufferer, so far as money con do it, and will try to make good the plaintiff has suffered as a natural result of the wrong done to him. This rule is, however, subject to the rule as the the remoteness of damages.

As regards the point of time from which the defendant should be held liable for committing the tort, Pirelli v. Oscar Faber, explains that where premises were defectively constructed, time ran from the moment when damage was done. This was however, neither necessarily the time when the building was completed nor when the damage was discernible.

Interest theory: According to this theory the dependents may be paid such lumpsum which may be equal to the loss suffered by them. The Court has to see how much a certain amount will bring if invested in fixed deposit. This theory is subject to criticism as it does not take into account the error in the value of money due to inflation.

The legal principle is well established that general damages are not required to be proved specifically. In the case of personal injuries the person injured is entitled to damages under the following heads: (1) Loss of earnings or earning capacity, (2) Medical and other expenses,
(3) Plain, suffering and mental distress, (4) Loss of expectation of life.

In another case, karnataka State Road Transport Corporation v. Krishna, which arose as a result of collision between two buses. In this case the following results were arrived at: “If the plaintiff is injured due to negligence on the part of the defendant he can claim not only expenses of Medical treatment, pain, and suffering etc.; but also such amount as increases his cost of future living. It means that if he has to spend some amount on extra nourishment, transport to and from the hospital or his place of work or charges for nursing attendance, all that can be recovered.”

Breach of promise of marriage: A person persuaded his finance after engagement ceremony to cohabit with him. She gave birth to a still-born child. Thereafter, the man refused to marry her and also denied the promise. As a result, she sufferred indignity, defamation, mental distress, as also physical discomfort. The Court, therefore, awarded substantial damages.

Loss of expectation of life: The damages can be recovered under this head was recognised in Flint v. Lovell, and Ross v. Ford. It was held. that the claim survived for the benefit of the deceased person’s estate. In Benham v. Gambling, the House of Lords laid down rules with respect to measure of damages under this head. These rules may be summarised thus: (a) The thing to be valued is not the prospect of length of days but of a predominantly happy life, (b) Capacity of the deceased to appreciate that his further life would bring him happiness is irrelevant, the test is objective,not subjective, (c) Damages are in respect of loss of life, not loss of future pecuniary prospects, (d) Assessment is so difficult that very moderate damages should be given and even loss for a very young child because its future is so uncertain, (e) wealth and social status must be ignored, for happiness does not depend on them.

Fundamental Principles

There are three fundamental principles upon which the law proceeds to determine the measure of damages.

(i) Restitution in integrum: The first and the foremost is restitution in integrum, i.e., such damages as flow directly in the usual course of things from the wrongful act. Therefore, where an injury is to be compensated by damages, in setting the sum of money to be given in reparation of damages, it is to be seen whether such sum of money will put the party who has been injured or who has suffered, in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation.

(ii) Remoteness of damages: The next principle is the remoteness of damages. This principle is precisely the same in both contract and tort. This is based on the maxim ‘injure non remota causa sed proxima spectatur’ and prevents the plaintiff from recovering any damages that do not flow or arise as a direct consequence of the wrongful act complained of.

(iii) Mitigation of damage: This principle is that in all claims for damages whether arising from contract or tort, a duty is cast upon the plaintiff to mitigate or minimise the damages to take all reasonable precautions to reduce the amount of loss or damage arising from the wrongful act of the defendant. Any loss or damage with which the exercise of reasonable care the plaintiff could have avoided, will be deemed too remote to be recoverable.

(B) Injunctions: The other important judicial remedy for tort is by way of injunctions. It mans an order of a Court of justice directing the defendant to abstain from the commission, continuance, or repetition of an unlawful act, or to do some act which he is legally bound to do. In the former case the injunction is said to be prohibitory while in the latter it is said to be mandatory. Injunction is supplementary to the ordinary and essential remedy of damages, and is granted in the discretion of the Court in cases in which damages would not amount to adequate redress. Thus, for example, in the case of continuing nuisance, the plaintiff can obtain not only damages for the bodily injury he has suffered, but also an injunction from the court to prevent the continuity of the wrongful act of the defendant in future. The owner of a yard in residential or business premises would be entitled to an injunction without having to show that his own use of the yard was interfered with.

In India, the right of granting or withholding an injunction is governed by the Special Relief Act. [Sections 53-56].

(C) Specific Restitution of Property: This third remedy is the specific restitution of property. Thus a person who is wrongfully dispossessed of immovable property, or of specific movable property is entitled to recover the movable or immovable property as the case may be. The law on this point is governed by Sections 9 and 10 of the Specific relief Act, 1963.

(II) Extra-judicial Remedies

These are available to a party by his own acts alone without resorting to the aid of law, e.g., expulsion of a trespasser re-entry on land, abatement of nuisance, etc.

(1) Expulsion of trespasser: It is a well-known principle of law that a person can resort to legitimate force in order to repel an intruder or trespasser. The condition precedent to such right is physical possession on the part of the person claiming that right irrespective of title. A person who is entitled to the immediate possession of immovable property may expel the trespasser therefrom and re-enter it, provided that the force used by him does not transgress the reasonable limits of the occasion.

(2) Re-entry on land: A man wrongfully dispossessed of his land may retake its possession, if he can do so in a peaceful and easy manner.

(3) Reception of goods: A person entitled to the immediate possession of chattels may recover them from any person who has then been in actual possession and detain them, provided that such possession was wrongful in its inception.

(4) Abetment of nuisance : In case of nuisance, private or public, under certain circumstances and subject to limitations, the injured party has a right to remove it. Thus, it is lawful for an owner or occupier of land, or for any one by the authority of the occupier, to terminate by his own act any nuisance which may injuriously affects his land provided that in doing so he does not cause any unnecessary damage, for which later he shall be liable.

(5) Distress damage feasant: The term “distress” means a right to detain; “feasant” means an object which has done a wrong; and “damages” implies the loss caused to the owner or the occupier. Where the owner or occupier of the land finds any cattle or any other cattles trespassing on his property and unlawful on his land and causing damage, he has a right to seize and detain it and refuse to release it unless the owner pays compensation for the damages suffered to by him.

(6) Finder of goods on another’s premises: Before awarding damages the court has to decide, in some cases, where there are more than one person claiming title to the thing, as to who has a better title. This problem is exemplified by the case of a finder. A person finds valuable goods on another’s property. Assuming that a finder is not an employee, then if there is a dispute between them for the title of the goods, we may answer it by asking whether the possessor of the premises intended to exercise control over all things which may be on the premises. If he did not, then the finder has a better right than the possessor. But his right would be clearly inferior to that of the person who lost the goods.


How many types of legal remedies are there is Tort? How personal injuries of a person is measured in Tort?

What are the general remedies which are available to an aggrieved person in Tort ?

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