What are remedies for tort law?

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a loss or detriment in fact that an individual suffers.1 

Overview

The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss. Typically, a party seeking redress through tort law will ask for damages in the form of monetary compensation. Less common remedies include injunction and restitution. 

The boundaries of tort law are defined by common law and state statutory law. Judges, in interpreting the language of statutes, have wide latitude in determining which actions qualify as legally cognizable wrongs, which defenses may override any given claim, and the appropriate measure of damages. Although tort law varies by state, many courts utilize the Restatement of Torts (2nd) as an influential guide. 

Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (e.g., causing an accident by failing to obey traffic rules); and strict liability torts (e.g., liability for making and selling defective products - see Products Liability). Intentional torts are wrongs that the defendant knew or should have known would result through his or her actions or omissions. Negligent torts occur when the defendant's actions were unreasonably unsafe. Unlike intentional and negligent torts, strict liability torts do not depend on the degree of care that the defendant used. Rather, in strict liability cases, courts focus on whether a particular result or harm manifested. 

There are numerous specific torts including trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress. There are also separate areas of tort law including nuisance, defamation, invasion of privacy, and a category of economic torts.

Remedies

The law recognizes torts as civil wrongs and allows injured parties to recover for their losses. Injured parties may bring suit to recover damages in the form of monetary compensation or for an injunction, which compels a party to cease an activity. In certain cases, courts will award punitive damages in addition to compensatory damages to deter further misconduct. 

In the vast majority of tort cases, the court will award compensatory damages to an injured party that has successfully proven his or her case.10 Compensatory damages are typically equal to the monetary value of the injured party's loss of earnings, loss of future earning capacity, pain and suffering, and reasonable medical expenses. Thus, courts may award damages for incurred as well as expected losses. 

When the court has an interest in deterring future misconduct, the court may award punitive damages in addition to compensatory damages. For example, in a case against a manufacturer for a defectively manufactured product, a court may award punitive damages to compel the manufacturer to ensure more careful production going forward. 

In some cases, injured parties may bring suit to obtain an injunction rather than monetary relief. The party seeking an injunction typically must prove that it would suffer considerable or irreparable harm without the court's intervention.

Distinguishing Torts from Other Bases of Liability

Torts are distinguishable from crimes, which are wrongs against the state or society at large. The main purpose of criminal liability is to enforce public justice. In contrast, tort law addresses private wrongs and has a central purpose of compensating the victim rather than punishing the wrongdoer.2 Some acts may provide a basis for both tort and criminal liability. For example, gross negligence that endangers the lives of others may simultaneously be a tort and a crime.3 

Some actions are punishable under both criminal law and tort law, such as battery. In that case, ideally tort law would provide a monetary remedy to the plaintiff, while criminal law would provide rehabilitation for the defendant, while also providing a benefit to society by reforming the defendant who committed assault.

Tort law is also distinct from contract law. Although a party may have a strong breach of contract case under contract law, a breach of contract is not typically considered a tortious act.4

Incomplete List of Torts and their Prima Facie Cases (D=defendant; P=plaintiff)

Trespass 

• D had the intent to invade the land
• D invaded land
• P possessed the land and did not give consent to D

Battery

• D acts 
• D intends to cause a contact with P via D’s touch
• D’s touch is harmful or offensive (objective test)
• Causation b/w intentional touch & harm (2b & 2c)
• P does not consent to the touch 

Assault

• D acts
• D intentionally acts so as to cause P to apprehend (not fear) imminent harmful or offensive contact with P
• D’s act causes P reasonably to apprehend (not necessarily fear) such a contact 

False Imprisonment

• D willfully acts . .
•  . . . intending to confine P w/o P’s consent & w/o authority of law
• D’s act causes P’s confinement
• P is aware of P’s confinement

Intentional Infliction of Emotional Distress 

• D acts
• D’s conduct is outrageous
• D acts for the purpose of causing the victim emotional distress so severe that it could be expected to adversely affect mental health
• D’s conduct causes such distress

Negligence

• D owed P a duty of reasonable care
• D breached that duty
• P suffers an injury
• D’s breach caused P’s injury

Negligence Per Se

• Statute or administrative created a duty
• P is in class of people protected by the duty statutorily imposed on D
• D violated that statute or administrative regulation
• The Statute was intended to prevent the type of injury suffered

Res ipsa loquitur negligence: P must prove 3 things:

• The incident was of a type that does not generally happen w/o negligence
• It was caused by an instrumentality solely in D’s control
• P did not contribute to the cause

Private Nuisance

• D's action is an intentional non-trespassory activity
• D's action is a recurring activity
• D's action unreasonably interferes w/P’s right to use & enjoy his land

Public Nuisance

• Injury resulting from intentional, unreasonable interference w/right common to the public
• The injury singles out P from the rest of the public

Products Liability

• D sells a product that P uses
• D is the commercial seller of such a product
• P suffers an injury
• When D sold the item, the item was defective
• The defect was an actual and proximate cause of P’s injury

Inducement of contract 

• Valid contract b/w P & third party (a contract that is not currently voided)
• D has knowledge of a valid contract
• D induces third party to disrupt the contract with P
• D’s inducement causes harm to P
• P must show that the inducement was not justified

1. Restatement (Second) of Torts § 7
2. Dobbs' Law of Torts § 1
3. See Dobbs' Law of Torts § 1

It is well-known that since Torts are wrongs of a civil nature, no punishment in the Criminal code can be awarded to the wrongdoer. General remedies can be, however, provided to the aggrieved party and against the said wrongdoer.

When we talk about remedies, there are two kinds of remedies-

• Judicial Remedies

• Extra-Judicial Remedies

The various well-known remedies in Law of Torts are discussed here as-

Damages are the most essential and readily available remedy to the plaintiff in case of commitment of any tort against the wrongdoer.

In simple terms, Damages in the law of torts are such pecuniary compensations given to the aggrieved party, and the quantum/amount of such compensation is determined by the Court because damages in torts are mostly un-liquidated.

i) Normal damages -

These damages are awarded in circumstances where only a right is established (e.g. Assault). This may not even meet the expense incurred for suing.

In Constantine v Imperial London Hotels Ltd, the plaintiff who was a famous West Indian Cricketer was denied accommodation in the defendant Hotel and the plaintiff was accommodated in one of their other branch hotels. It was held by the Court that the plaintiff was entitled to the compensation of 5 guineas as damages.

ii) Compensatory, aggravated and vindictive damages-

The rationale behind awarding such damages to the plaintiff against the wrongdoer is to fulfil the principles of civil law and provide non-punitive punishments. Hence they are also called

Compensatory Damages.

When the damages awarded are more than the material loss suffered by the plaintiff to prevent similar behaviour in future, the damages are known as Exemplary, Punitive, or Vindictive. Such damages are not compensatory they are rather by way of punishment to the defendant.

Lord Devlin in Rookes v. Barnard observed that the rationale of awarding exemplary damages to dissuade and penalize the wrongdoer has in consequence blurred the lines of working of civil and criminal law.

iii) Exemplary damages-

There are some cases where it is not possible to calculate the compensation in terms of money. In such cases, the Court considers the conduct, motive and other vital information of the case in hand, and awards exceptionally high damages or compensation to be paid. Hence, the word Exemplary, to make an example and prevent further similar commissions of the act.

The amount awarded is much more than the loss suffered.

• Huckle v. Money: In this case, a person's house was searched without any probable cause or proper documentation by a government servant. It was held that the government servant was liable for unlawfully entering and searching the house, and was awarded exemplary damages for such unlawful act.

• Marzetti v. William: The defendant bank, in this case, refused to honour a cheque of the plaintiff for no justifiable reason. A suit was raised by the plaintiff and it was held that the bank was liable and was awarded damages.

iv) Contemptuous Damages-

In some cases, the plaintiff although suffers some injury or loss but such injury or loss is very insignificant but the Court instead of dismissing the case, forms a rather low opinion of the plaintiff for bringing the suit and awards a mere token amount to acknowledge the claim.

such

It is to be distinguished from nominal damages. Nominal damages are generally awarded in cases where the plaintiff has not suffered any loss, whereas, in the case of Contemptuous damages, the plaintiff might have suffered some minor loss but is not completely liable for compensation.

When a wrong is actionable per se, for example, in the case of trespass, damage to the plaintiff is presumed and action lies even though the plaintiff may not have suffered any loss.

In Ashby v. White, a voter was wrongfully disqualified from voting in Parliamentary elections. It was later found out that the voter consequently did not suffer any loss because the candidate who the voter was supporting had already won the election. The defendant was held liable as it was considered a significant legal injury.

The rule is "De minimis non curet lex". (Trifle matters are not recognized by the Court). The samples of such cases include trespass on land or trespass to the person.

An injunction is an order of the court which directs a party to perform any act or be restrained on the commission or omission or even the continuance of such act.

It is upon the discretion of the court to grant or refuse such relief and if such relief is possible by way of damages, then the court shall not pass an order for an injunction for the aggrieved party.

The principles for granting an injunction are laid down in the Specific Relief Act, 1963.

Section 37 of the Specific Relief Act, 1963 provides that the injunctions are of broadly two categories-

a) Temporary Injunction-

It refers to such injunctions that are granted by the Court for granting preliminary relief to preserve the rights of the plaintiff, until further orders of the Court, and are to continue until specified by the Court.

b) Permanent Injunction-

It refers to such injunctions wherein a defendant is permanently admonished from the exercise or assertion of a right or, from the commission of any acts that could be against the rights of the plaintiff or aggrieved party.

The Act also provides for Specific Restitution of Property under Section 7 of the Specific Relief Act, 1963, if and when, the plaintiff has been wrongfully dispossessed of either his movable property or immovable property. In such cases, the court may grant an order for the restoration or restitution of the specific property.

For a more detailed discussion on Injunctions, visit here- Injunctions

Besides the judicial remedies that we have discussed above, a person is entitled to undertake remedies that are beyond the scope of the law and can be used in cases where no legal suit arises out of the consequences of such actions and where this might be the last remedy.

Such remedies are called Extra-Judicial remedies.

The remedies are re-entry of land, recaption of chattels, distress damage feasant and abatement of the nuisance.

i) Distress Damage feasant:

This is an extra-judicial remedy. A person in possession of land may distress (means detain) a feasant for the damage it has done. The owner has the power to seize and apprehend the cattle or animals, till the owner does not pay such compensation for the trespass. Animals or chattels are both represented by the word "Feasant".

Examples of such feasant include- stray animals such as cows, ox or chattels left on the property of such person.

However, whenever the chattels or feasant trespass into the property, the owner of the property also has the obligation to reasonably take care of such property. The owner is not entitled to sell or use such property, without sending prior notice to the owner of such feasant.

ii) Abatement of Nuisance:

This simply implies the removal of any commission or omission of an act by a person, which is causing a nuisance to another party without involving any judicial proceedings.

An occupier of land is permitted to abate, i.e., to terminate by his act, nuisance which is affecting his land.

In the case of actual abatement, however, a notice of such abatement must be sent to the other party, that continuance of such nuisance may be a danger to life and property. (James v. William)

iii) Expulsion of Trespasser:

A person has the right to expel any trespassers entering his property by taking adequate means to expel such a trespasser. However, the force used by the plaintiff or the owner of the property on the trespasser must be proportional to the threat caused by such trespass and must be justifiable.

iv) Recaption of goods:

It refers to the retaking of goods with a right to take. Under the concept of recaption, the owner may retake or repossess the goods that they might find, and so the recaption is valid as long as it is done in an orderly and legal manner.

If a person's possession has been disturbed by a trespasser, he has a right to use reasonable force to get the trespass vacated. A trespasser who, with the use of reasonable force, is made to leave the premises, cannot bring an action against the person who was lawfully entitled to his land. (Hemmings v. Stoke Poges Golf Club)

Given the above-mentioned facts, it would be proper to assume that although in cases of legal injury or loss of property through a civil wrong, it is highly advised that recourse to legal measures be taken, we must also take cognizance of the fact that a lot of times, parties are also bound by time constraints or inability to pursue a legal matter.

Hence, in such scenarios, such aggrieved parties also have at their disposal some extra-judicial measures that can be undertaken. In taking such measures also, we must remember the law and always take the approach of a reasonable person.