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REMEDIES[1]
QUESTION BANK
Q.1. Explain and illustrate the maxim “Inure non remota causa sed proxima spectator”.
Q.2. Distinguish between ‘Damage’ and ‘Damages’. Discuss in brief the legal principles underlying the proposition, “there is no wrong without a remedy”.
Q.3. What are the judicial remedies available for an action in tort?
SHORT NOTES
- Remoteness of damages.
- Compensatory damages.
SYNOPSIS
- A) JUDICIAL REMEDIES.
- DAMAGES-
- a) Introduction-
- b) General and Special damages-
(i). General Damages.
(ii). Special Damages.
- c) ‘Damage’ and ‘Damages’-
- d) Remoteness of damages-
(i) The damage is considered too remote in the following cases-
(ii) Tests of Remoteness-
(1) The test of direct consequence-
(2) The test of reasonable foreseeability-
(e) Kinds of damages-
(i) Contemptuous damages-
(ii) Nominal Damages-
(iii) Real or substantial damages (Compensatory damages)-
(iv) Exemplary damages-
- INJUNCTION.
III. SPECIFIC RESTITUTION.
- B) EXTRA JUDICIAL REMEDIES.
(1) Expulsion of trespasser and Re-entry on land (Right of private defence)-
(2) Re-caption of goods-
(3) Abatement of a nuisance-
(4) Distress damage feasant-
There are two kinds of remedies available for torts-
- A) Judicial
- B) Extra Judicial.
A) JUDICIAL REMEDIES.
The remedies afforded by the courts of law are called Judicial remedies. The injured party may institute a suit in a court of law and obtain redress or relief. The remedies available to the Court for tort are of three kinds-
I. DAMAGES-
a) Introduction-
Damages are the pecuniary compensation that the law awards to a person for the injury (i.e., damage) that he has sustained by way of a wrongful act of the defendant. The term ‘damage’ means the physical effect of the defendant’s act. Every invasion of legal right entitles a person to damages even though such a person has suffered no pecuniary loss. So, injury to a legal right is called legal damage.
The term ‘damages’ differs from the term ‘compensation’ because ‘damages’ is used for pecuniary recompense (compensation) for a loss or injury caused by a wrongful act. The term ‘compensation’ is used in relation to a lawful act that caused the injury, with respect to which indemnity is obtained under the provisions of a particular statute.
b) General and Special damages-
(i). General Damages[2]–
General damages arise naturally in the usual course of things from the breach itself. Such damages can reasonably be foreseen.
In Ashby Vs. White [3]
Facts: The plaintiff was a legal voter; his name was on the voting list. The defendant was the Returning Officer of the election booth. He refused the plaintiff to cast his lawful vote. The plaintiff sued the defendant for compensation.
Defence of defendant: – The plaintiff suffered no loss in terms of money. Moreover, the candidate for whom he wanted to vote got elected. Hence, the defendant is not liable since there was no monetary (pecuniary) loss to the plaintiff.
Court Held: – The defendant is liable to pay compensation because he has violated the legal right of a plaintiff to vote, even though his candidate is elected and the plaintiff has suffered no loss in terms of money.
(ii). Special Damages[4]–
Special damages are those that arise on account of the unusual circumstances affecting the plaintiff. These damages are not recoverable unless the special circumstances were brought to the defendant’s knowledge, e.g., slander is actionable only on proving special damage.
c) ‘Damage’ and ‘Damages’-
The word ‘damage’ must not be confused with the word ‘damages’. These two words are not equivalent, nor is the term ‘damages’ plural of the term ‘damage’. The term ‘damage’ means and includes the loss of money, comfort, health, property, or the like caused by the defendant’s wrongful act. Whereas the term ‘damages’ means the monetary compensation claimed by the injured and awarded by the Court.
In short, ‘damage’ means the loss inflicted by the defendant’s wrongful act, for the recompense of which the Court awards pecuniary compensation, i.e. ‘damages’.
The damage must be a direct and natural consequence of the defendant’s act.
d) Remoteness of damages[5]–
Damages to be awarded should not be remote ones. The damage suffered by the plaintiff must be a direct and natural cause of the defendant’s act. The law will permit no ‘damages’ to be recovered except for the natural and direct consequences of a wrongful act. This is stated in the maxim ‘Injure non-remote causa sed proxima spectator,’ i.e. ‘in a law, the immediate, not the remote cause of any event is to be considered’.
Where the causal connection between the wrongful act and injury is not sufficiently direct, there is no liability. The rule of law is that the wrongful act, to render the defendant liable, must be the ‘causa causance’, i.e., the proximate cause of the injury, and not merely a ‘causa sine qua non’, i.e., cause without which the consequence would not have happened. E.g. Due to the push of A, B falls on a stone negligently kept by C and is injured. Here, ‘A’ pushing ‘B’ is causa causance (i.e., the direct cause of injury), whereas stone negligently kept by C is ‘causa sine qua non’ (i.e., cause without which injury would not have happened).
(i) The damage is considered too remote in the following cases-
(1) Where the defendant’s act is not the direct cause of the ‘damage’ sustained by Plaintiff.
(2) When the damage is caused by the act of Plaintiff himself.
(3) When the damage is the wrongful act of an independent third party, such as could not naturally be contemplated as likely to spring from the defendant’s conduct.
This is what is stated in the doctrine ‘noves actus interveniens‘. It means ‘damage resulting to the Plaintiff after the chain of causation set in motion by the defendant’s wrongful act, but snapped by a third person; it is too remote and does not qualify for an award of damages against the defendant.
(4) Legal intervention-
Where there comes in the chain of ‘causation’, the act of a person bound by law to decide a matter judicially and independently, the consequence of his decision is too remote from the original wrong, giving him a chance of deciding. For example, where A wrongfully took B into custody and brought him before the Magistrate, A is not liable for the subsequent remand by the Magistrate, which is a judicial act.
(ii) Tests of Remoteness-
There are two tests of the remoteness of damages-
(1) The test of direct consequence[6]–
According to this test, once the defendant is held liable for a tort, he is liable for all its direct consequences, whether a reasonable man would have foreseen them or not.
This test was first laid down in Smith Vs. L & S. W Railway[7]
Facts– the grass and bushes bordering the defendant’s Railway line were cut by its servants and negligently heaped aside. As a result, a spark emanated from a passing railway engine and ignited the heap of grass. The fire was carried 200 yards away by the wind and consequently burned the plaintiff’s cottage.
Held– Defendant Company is liable, even though the consequence could not have reasonably been foreseen.
This principle is applied in Re-Polemies Case.[8]
Facts– the defendant chartered (hired) the plaintiff’s vessel to carry cargo, including a quantity of petrol. Some of the petrol casks leaked on the voyage, and there was petrol vapour in the hold (i.e., storage space between a ship’s decks). While shifting the cargo, the defendant’s servant negligently let the plank (flat wooden piece) drop in the hold, thereby causing a spark in the hold, and immediately, the petrol vapour caught fire. Hence, the whole vessel was destroyed by fire.
The Court held that since the fall of the plank was a direct consequence of the negligence of the defendant’s servant, the defendant is liable for all the direct consequences of the negligent act, even though the consequences could not reasonably have been anticipated (i.e., the loss of the ship).
(2) The test of reasonable foreseeability[9]–
This test is laid down in The Wagon Mound Case.[10]
Facts- The defendant is the charterer (hirer) of the ‘fuel carrying container’, i.e., ‘Wagon Mound’. During the bunkering operations (loading the fuel in a container) in Sydney Harbour, a large quantity of oil was negligently allowed to spill from the ‘Wagon Mound’ ship. The oil spilt was carried by wind to the plaintiff’s wharf (600 ft. away). After some days, floating oil caught fire due to repair work in the wharf, thereby causing destruction to the wharf and vessels.
Privy Council Held—Rejecting the plaintiff’s claim, the Court overruled the principle laid down in the Re Polemies Case. It further held that it is not just and moral to allow damages based on a ‘direct consequence’ rule. Because of the slight negligent act, which resulted in normal foreseeable damage, why is the defendant held liable for all those consequential damages, so far called ‘direct damage’?
So, according to the ‘reasonable foreseeability test, the essential point in determining liability for the consequences of a wrongful act of negligence is whether the damage is of such a kind as a reasonable man would have foreseen. The damages are too remote if a reasonable man would not have foreseen them.
(e) Kinds of damages-
Damages are of the following four kinds-
(i) Contemptuous damages[11]–
Contemptuous damages are awarded by the court when it considers that the Plaintiff should not have brought the action for such a minor cause. They indicate that law courts are expressing their disapproval or contempt for the plaintiff’s conduct in the matter. The difference between contemptuous and nominal damages is that the former is an award for any tortious act, whether actionable per se or not.
In this case of contemptuous damages, they are awarded where the court finds that the defendant is at fault, but the Plaintiff’s conduct is nonetheless blameworthy.
So, in such case, the court grants such a small or contemptuous amount as to indicate its disapproval of the Plaintiff’s claim or conduct, e.g., 10 paise.
(ii) Nominal Damages[12]–
Nominal damages are awarded by the courts where the purpose of the action is merely to establish a right because no substantial harm or loss is suffered by the Plaintiff, e.g., mere trespass, invasion of a right of easement, etc.
In Ashby Vs. White[13] nominal damages to recognize the right of the vote was awarded.
(iii) Real or substantial damages (Compensatory damages)[14]–
‘Real or substantial damages’ is that which is assessed and awarded as compensation for the damage actually suffered by the Plaintiff and not simply by way of the mere recognization of a legal right violated. They are also called compensatory or ordinary damages. These are the fair and equitable damages.
(iv) Exemplary damages[15]–
These are damages awarded not to compensate the Plaintiff but to punish the defendant and deter him from similar conduct. Such an amount of compensation is generally heavy. These damages are also known as ‘vindictive’ or ‘punitive’ damages.
In Rooks Vs. Barnard [16]
The House of Lords ruled that exemplary damages can be allowed in three categories of cases- viz-
- Oppressive, arbitrary, or unconstitutional action by servants of Government.
- Cases where he has calculated the defendant’s conduct to make a profit for himself, which may well exceed the compensation payable to the Plaintiff.
- Where exemplary damages are expressly authorized by the statute.
II. INJUNCTION[17]
Another important judicial remedy for tort is by way of injunction. An injunction is an order of a court restraining the commission, repetition, or continuance of a wrongful act of the defendant. To be entitled to an injunction, he must prove either damage or apprehend damage.
An injunction may be granted to prevent waste, trespass, or the continuance of nuisance to dwelling or business houses, to right of support, to right of way, etc.
The right to an injunction is governed in India by the Specific Relief Act, sections 36 to 42. The Civil Procedure Code, Order 39, governs the grant of a temporary injunction.
The injunctions are either Perpetual or Temporary. The former is an order of the Court through a final hearing and order forever. In contrast, a temporary injunction is ordered for a short period, i.e., until the next or final court order. The nature of this order may be prohibitory, i.e., restraining the commission, repetition, or continuance of a wrongful act. In contrast, a mandatory injunction is an order compelling a person to do something positive.
III. SPECIFIC RESTITUTION-
The third kind of judicial remedy for a tortious act is specific restitution of property. Thus, a person who is wrongfully dispossessed of immovable property or specific movable property is entitled to recover the immovable or movable property, as the case may be.
B) EXTRA-JUDICIAL REMEDIES[18]–
Extra-judicial remedies are those that an injured party adopts when he takes the law into his own hands and helps himself in the matter. The following are the extra-judicial remedies-
(1) Expulsion of trespasser and Re-entry on land (Right of private defence)-
A person entitled to possession can resort to legitimate force to repeal the intruder or trespasser (Ss. 96 to 106 of the Indian Penal Code). Also, a person who is entitled to the immediate possession of the immovable property may expel the trespasser from there and re-inter on it provided that the force used by him does not exceed the reasonable limits of the occasion.
(2) Re-caption of goods-
A person entitled to the immediate possession of chattels (i.e., movable property) may recover them from any person who has been in actual possession at that time, provided that possession was wrongful from its inception.
(3) Abatement of a nuisance-
In case of nuisance, private or public, under certain circumstances and subject to limitations, the injured party has a right to remove it.
(4) Distress damage feasant-
The term ‘distress’ means a right to detain, ‘peasant’ means an ‘object’ that has done a wrong, and ‘damage’ implies the loss caused to the owner or the occupier. Thus the maxim implies the right of detention of an object which has done wrong until the recovery of loss caused to the owner. In other words, the owner has the right to detain the thing which has caused damage to him unless that damage or loss is compensated.
For instance- where the owner or occupier of the land finds any cattle trespassing on his land and causing damage, he has a right to seize and detain it and refuses to release it unless the owner pays compensation for the damage suffered by him.
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[1] उपाय [ उपाय ]
[2] सर्वसाधारण नुकसान भरपाई [ सामान्य नुकसान ]
[3] 1703
[4] विशिष्ठ नुकसान भरपाई [ विशेष नुकसान ]
[5] दूरच्या कारणासाठी नुकसान भरपाई [ दूरस्थ कारण के लिए मुआवजा ]
[6] प्रत्यक्ष परिणाम [ वास्तविक परिणाम ]
[7] 1870
[8] 1921 K. B.
[9] सर्वसामान्यपणे कल्पनेत असणारे /कल्पना करता येण्यासारखे नुकसान [ आम तौर पर कल्पनीय[कल्पनीय क्षति ]
[10] 1963 AC
[11] अवमानकारक /तुच्छ नुकसान भरपाई /अपमानजनक [ महत्वहीन मुआवजा ]
[12] नाममात्र [ नाममात्र ]
[13] (1703)92 ER 126 Facts: – Plaintiff was a legal voter; his name was there on the voting list. The defendant was returning officer of election. He refused the plaintiff to cast his lawful vote. Plaintiff sued the defendant for compensation.
Defense of defendant: – The plaintiff suffered no loss in terms of money. Moreover, the candidate to whom he wanted to cast his vote got elected. Hence defendant is not liable, since there was no monetary (pecuniary) loss to the plaintiff.
Court Held: – Defendant is liable to pay compensation because he has violated the legal right of the plaintiff to vote, even though his candidate is elected and the plaintiff has suffered no loss in terms of money.
[14] प्रत्यक्ष नुकसान भरपाई [ प्रत्यक्ष रूप मुवावजा ]
[15] जादा शिक्षा म्हणून नुकसान भरपाई [ अतिरिक्त सजा के रूप में मुवावजा ]
[16] 1961 AC 1129
[17] मनाई हुकुम [ निषेधाज्ञा ]
[18] न्यायिक व्यतीरिक्त उपाय [ न्यायेतर उपचार ]