Cheat Sheet: Remedies under Tort Law

1. Judicial Remedies

1.1 Damages

1.1.1 Measure of Damages

• Restitutio in integrum: Principle to restore plaintiff to pre-tort position as far as money can
• Remoteness of damages: Only reasonably foreseeable consequences compensable
• Mitigation: Plaintiff must take reasonable steps to minimize loss
• Aggravation: Damages increased for defendant's malice, insolence, or oppressive conduct

1.1.2 Exemplary Damages in India

• Awarded in cases of oppressive, arbitrary, or unconstitutional action by government servants
• Bhim Singh v. State of J&K (1986): Supreme Court awarded exemplary damages for illegal detention and violation of fundamental rights
• Nilabati Behera v. State of Orissa (1993): Custodial death case; compensation awarded under Article 32
• Purpose: vindication of fundamental rights and deterrence

1.2 Injunction

1.2.1 Conditions for Granting Injunction

• Prima facie case established by plaintiff
• Balance of convenience favors plaintiff
• Irreparable injury would result if injunction not granted
• Damages inadequate remedy
• Clean hands doctrine: plaintiff must come with clean hands
• No delay or laches by plaintiff

1.2.2 When Injunction Refused

• Damages adequate remedy for injury suffered
• Plaintiff guilty of acquiescence or delay
• Injunction would cause greater hardship to defendant than benefit to plaintiff
• Act already completed and cannot be undone
• Continuous supervision by court required

1.3 Specific Restitution of Property

• Remedy for wrongful dispossession of specific movable or immovable property
• Plaintiff entitled to recover actual property wrongfully taken
• Available in torts involving interference with property: trespass, conversion, detinue
• Specific Relief Act, 1963 governs recovery of specific immovable property (Sections 5-8)
• Specific Relief Act, 1963 governs recovery of specific movable property (Sections 9-12)

2. Extra-Judicial Remedies

2.1 Self-Help/Self-Defence

2.1.1 Limitations on Self-Help

• Force used must be reasonable and proportionate to threat
• No use of excessive or unnecessary force
• Must not breach peace or commit further tort
• Available only when immediate action necessary
• Judicial remedy preferred when no urgency

2.2 Distress Damage Feasant

• Right to seize and detain chattel of another found on one's land doing damage
• Detention continues until compensation paid for damage caused
• No right to use or sell detained chattel
• Must give notice to owner of chattel
• Not applicable if animals straying due to Act of God or default of occupier
• Abolished or restricted in many jurisdictions

3. Factors Affecting Remedies

3.1 Remoteness of Damage

3.1.1 Application of Remoteness

• Type of damage must be reasonably foreseeable
• Exact extent or manner of damage need not be foreseeable
• Thin skull rule: take victim as found; pre-existing condition not remote
• Intervening act (novus actus interveniens) may break chain of causation

3.2 Mitigation of Damages

• Plaintiff under duty to take reasonable steps to minimize loss
• Cannot recover for loss that could have been avoided by reasonable effort
• Standard is reasonableness, not perfection
• Burden on defendant to prove failure to mitigate
• Plaintiff need not take extraordinary or risky measures

3.3 Contributory Negligence

• Plaintiff's own negligence contributed to injury suffered
• Damages reduced proportionate to plaintiff's fault
• Law Reform (Contributory Negligence) Act in UK; similar provisions in India
• Apportionment based on respective degrees of fault
• Not applicable to intentional torts

3.4 Multiplicity of Remedies

• Same wrong may give rise to multiple causes of action
• Plaintiff may pursue concurrent remedies
• Cannot recover double compensation for same loss
• Election of remedies: must choose between inconsistent remedies
• Damages and injunction may both be granted for continuing tort

4. Special Considerations

4.1 Vicarious Liability and Remedies

• Plaintiff may sue either tortfeasor or vicariously liable party or both
• Joint and several liability: plaintiff may recover full amount from any defendant
• Right of indemnity: vicariously liable party may recover from actual tortfeasor
• Contribution: joint tortfeasors share liability among themselves proportionately

4.2 Death and Remedies

4.2.1 Death of Plaintiff

• Common law: actio personalis moritur cum persona (personal action dies with person)
• Law Reform (Miscellaneous Provisions) Act: cause of action survives for benefit of estate
• Estate can recover damages for period between injury and death
• Damages for pain, suffering, loss of expectation of life

4.2.2 Death of Defendant

• Action survives against estate of deceased tortfeasor
• Recovery limited to estate's assets
• No exemplary damages against estate

4.2.3 Fatal Accidents Claims

• Fatal Accidents Act, 1855 (Lord Campbell's Act) in India
• Dependents of deceased may sue for loss of dependency
• Independent action separate from estate's claim
• Loss calculated based on deceased's contribution to dependents

4.3 Limitation Period

• Limitation Act, 1963 prescribes time limits for tort actions in India
• Personal injury: 3 years from date cause of action arose
• Defamation: 1 year from publication
• Other torts: 3 years generally
• Time runs from date of damage, not date of wrongful act
• Disability, fraud, or mistake may extend limitation period

4.4 Measure of Damages in Specific Torts

5. Constitutional Remedies for Tortious Acts

5.1 Public Law Remedies

• Article 32: Right to constitutional remedies for violation of fundamental rights
• Article 226: High Court power to issue writs for fundamental rights and other purposes
• Supreme Court can award compensation under Article 32 for violation of fundamental rights
• Compensation serves as remedy where tort and constitutional violation overlap

5.2 Sovereign Immunity Limitation

• State immune from tort liability for sovereign functions
• Liable for non-sovereign/commercial functions
• Constitutional remedy under Article 32/226 available despite sovereign immunity
• Distinction between private law remedy (tort) and public law remedy (constitutional)

5.3 Leading Cases on Constitutional Compensation

6. Procedural Aspects

6.1 Parties to Tort Action

• Plaintiff: person whose legal right violated
• Multiple plaintiffs possible if joint interest or common grievance
• Defendant: person who committed tort or vicariously liable
• Joint tortfeasors: multiple defendants acting in concert
• Several concurrent tortfeasors: independent acts causing same damage

6.2 Burden and Standard of Proof

• Burden on plaintiff to prove tort committed by defendant
• Standard: balance of probabilities (preponderance of evidence)
• Res ipsa loquitur: burden shifts where facts speak for themselves
• Defendant must prove defenses raised

6.3 Pleading Requirements

• Plaint must state cause of action with material facts
• Must specify tort alleged and relief claimed
• Particulars of damages must be pleaded
• Special damage must be specifically pleaded and proved
• General damage flows from nature of wrong without specific proof

6.4 Assessment of Damages

• Court assesses quantum based on evidence
• Special damages: proved with precision (medical bills, lost wages)
• General damages: at large (pain, suffering, loss of amenity)
• Court may appoint commissioner to assess damages
• Structured settlements for future periodic payments possible