Law of Torts
Remedies in Tort: Judicial and Extra Judicial Remedies, and the Self Help Remedies
The remedies for a tort divide into judicial remedies, granted by a court, and extra judicial remedies, which a person may exercise himself without going to court at all. The judicial remedies are damages, which is the primary one and is available as of right; the injunction, which is discretionary and is granted only where damages would be inadequate; and the specific restitution of property. The extra judicial remedies are ancient, narrow, and consistently disfavoured, for reasons that are the same in every case.
The judicial remedies, the self help remedies, and why self help is not favoured
1. The Map
Judicial remedies | Extra judicial remedies |
Damages, the primary remedy, available as of right once the tort is proved | Expulsion of a trespasser from land |
Injunction, temporary or perpetual, prohibitory or mandatory, and discretionary | Re entry on land by a person entitled to possession |
Specific restitution of property, movable under sections 7 and 8 and immovable under section 6 of the Specific Relief Act, 1963 | Recaption of goods by their owner |
A declaration, where the plaintiff needs his right established rather than compensated | Abatement of a nuisance by the person affected |
An account, in the limited cases where the defendant must account for a gain | Distress damage feasant: detaining a chattel or animal found doing damage |
2. Damages as the Primary Remedy
- Every tort is compensable in money, and damages are available as of right once the tort is proved. Unlike an injunction, they are not discretionary.
- In some torts they follow without proof of any loss, because the tort is actionable per se: trespass to land, trespass to goods, assault, battery, false imprisonment, and libel. In those cases nominal damages mark the violation of the right.
- In others damage is an ingredient, and without it there is no tort at all: negligence, nuisance, deceit, malicious prosecution and injurious falsehood.
- The kinds of damages are examined in TORT 093 and their assessment in TORT 094 and TORT 095.
3. Injunction
- An order of the court directing a person to do or to refrain from doing something.
- It is discretionary and equitable, and is granted only where damages would be an inadequate remedy.
- It is the primary remedy in nuisance and in continuing trespass, because what the plaintiff wants is that the interference should stop, and an award of damages for a continuing wrong simply licenses its continuance.
- Governed by sections 36 to 42 of the Specific Relief Act, 1963, and for temporary injunctions by Order XXXIX of the Code of Civil Procedure, 1908.
- Examined fully in TORT 096.
4. Specific Restitution of Property
The property | The remedy |
Immovable property | A suit for possession on title, under the ordinary law. Or the summary remedy under section 6 of the Specific Relief Act, 1963: a person dispossessed without his consent otherwise than in due course of law may recover possession within six months, without proving title, and no appeal or review lies from the decree |
Movable property | Sections 7 and 8 of the Specific Relief Act, 1963. Section 7 allows recovery of specific movable property in the manner provided by the Code of Civil Procedure. Section 8 compels a person in possession but not as owner to deliver the article to the person entitled to immediate possession, in four defined cases |
- The four cases under section 8 are where the thing is held by the defendant as agent or trustee of the plaintiff; where compensation in money would not afford adequate relief; where it would be extremely difficult to ascertain the actual damage; and where the possession has been wrongfully transferred from the plaintiff.
- The remedy matters where the thing is unique, or difficult to value, or where the plaintiff simply wants it back rather than its price: TORT 073.
5. The Self Help Remedies
The remedy | What it permits, and its limits |
Expulsion of a trespasser | An occupier may remove a trespasser using no more force than is reasonable. A request to leave must ordinarily be made first, and force used before the request is a battery |
Re entry on land | A person entitled to immediate possession may re enter, peaceably and with no more force than is reasonable. But a person in settled possession is not to be dispossessed except in due course of law, and an owner who evicts him forcibly may find himself the defendant in a suit under section 6 |
Recaption of goods | The owner may retake his own goods with reasonable force. He may enter the land of the wrongdoer who took them, since the wrongdoer cannot complain of a trespass occasioned by his own wrong. He may not enter the land of an innocent third party except on request and refusal |
Abatement of nuisance | The person affected removes the nuisance himself. Notice must ordinarily be given before entering the defendant's land, the least harmful method must be chosen, and no more force used than is necessary. The commonest legitimate instance is cutting back overhanging branches to the boundary |
Distress damage feasant | A possessor may detain a chattel or an animal found doing damage on his land until compensation is made. The thing detained may not be used or sold, and the right is lost once the thing has left the land |
6. Why Self Help Is Not Favoured
- It invites a breach of the peace. Two parties each convinced of their rights, meeting at a boundary, is the situation the law of remedies exists to avoid.
- A person who miscalculates his rights exchanges a good claim for a liability of his own. An occupier who uses more force than is reasonable commits a battery; a person who abates a nuisance by an unnecessarily destructive method commits a trespass; an owner who evicts a person in settled possession faces a suit under section 6 in which his title will not help him.
- A plaintiff who takes matters into his own hands may forfeit the assistance of the court when he later needs it, since equitable relief is discretionary and the plaintiff's own conduct is relevant to it.
- And the remedies are narrow by design. Each carries a procedural condition, a request, a notice, a limit on force, or a prohibition on entering an innocent party's land, and the conditions are the mechanism by which the law confines them.
⚠ What the choice of remedy actually turns on A plaintiff advising on a tort claim should begin with a question that the classification of remedies tends to obscure: what does he actually want. If the wrong is complete and the loss can be priced, he wants damages, and the case is about quantum. If the wrong is continuing and he wants it to stop, he wants an injunction, and the case is about whether damages would be adequate, which they are not where the interference recurs. If he wants the thing itself rather than its value, he wants specific restitution, and the case is about whether the statutory conditions are met. Those three questions dictate the frame of the plaint, the court fee, the limitation article and the evidence that will be needed, and they rarely produce the same answer. The commonest drafting error in this field is a plaint that claims damages as a matter of habit in a case where the plaintiff's real complaint is that the defendant has not stopped. |
7. The Position Stated Shortly
1. The remedies divide into judicial remedies, granted by a court, and extra judicial remedies, exercised by the person himself.
2. Damages are the primary remedy, available as of right once the tort is proved, and are not discretionary.
3. In torts actionable per se damages follow without proof of loss; in others damage is an ingredient of the tort.
4. An injunction is discretionary and equitable, granted only where damages would be an inadequate remedy, and is the primary remedy in nuisance and continuing trespass.
5. Specific restitution of immovable property lies on title, or summarily under section 6 of the Specific Relief Act, 1963 within six months of dispossession otherwise than in due course of law.
6. Specific restitution of movable property lies under sections 7 and 8 of that Act, section 8 applying in four defined cases.
7. The self help remedies are expulsion of a trespasser, re entry on land, recaption of goods, abatement of nuisance, and distress damage feasant.
8. Each is confined by a procedural condition: a request, a notice, a limit on reasonable force, or a prohibition on entering an innocent third party's land.
9. Self help is not favoured because it invites a breach of the peace, because a person who miscalculates his rights incurs a liability of his own, and because it may forfeit the court's assistance.
10. The choice of remedy turns on what the plaintiff actually wants: compensation, cessation, or the thing itself.