#damage-feasant | Explore Tumblr Posts and Blogs

loyallogic · 5 years

Text

Distress Damage Feasant- Animal Rights and Tort Law

This Article is written by Khushi Agrawal, 1st-year student, Symbiosis Law School, Noida. She has discussed the concepts of distress damage feasant and animal rights in detail.

Introduction

An animal’s keeper is strictly liable, irrespective of negligence for damage done by the animal belonging to the dangerous species, or if he knew the vicious character of the animal belonging to the non-dangerous species. Animals falling in the first category are lions, bears, elephants, wolves, ape, etc. whereas animals falling in the second category are dogs, horses, cows, rams, cats, etc.

A person who keeps an animal with knowledge of its tendency to do harm is strictly liable for damage that it does if it escapes; he is under an absolute duty to confine or control it so that it shall not do injury to others. All animals ferae naturae, that is, all animals that are not harmless by nature, or have not been man-made and domesticated, are definitely presumed to have such a tendency so that the scienter does not need to be proved in them. All second-category animals, mansuetae naturae, are presumed to be harmless until they have manifested a savage or vicious propensity; proof of such a manifestation is scientific proof and serves to transfer the animal, so to speak, from the natural class to the class ferae naturae.

Click above

The circus owners, even without negligence were held liable when their Burmese elephant frightened by the barking of a small dog. The elephant ran after the dog and knocked the plaintiff who was inside the booth. In May v Burdett[1], the defendant was held liable for keeping a monkey which bit the plaintiff, on the ground that the monkey is a dangerous animal. In Hudson v. Roberts[2], where the defendant had the knowledge that the bull is always irritated by the colour red, was held liable when the bull attacked the plaintiff who was wearing a red handkerchief and was walking on the highway. In Read v. Edwards[3], the defendant having knowledge of peculiar propensities of his dog in chasing and destroying the pheasants was held liable to the plaintiff when the dog chased and destroyed his pheasants.

The conclusion boils down to the fact that there is no difficulty if the animal belongs to the category of ‘ferae naturae’. The keeper shall be liable strictly for the damage done by it even though he is not at fault. But the difficulty arises in those cases where the animal belongs to the category of ‘mansuetae naturae’. In such cases, if the animal has some dangerous propensities, it will be transferred in the category of ‘ferae naturae’. Here the keeper will be liable strictly, independently of negligence, if the plaintiff proves scienter i.e. the defendant had the knowledge of the dangerous propensities of such animal.

Cattle Trespass

Scienter Rule

In the event of a cattle trespass and consequent natural damage, or any other damage due to particular vicious propensities of the cattle, the liability is strict and the owner of the cattle will be liable even if he did not know of any other particular propensities in that animal. There is no need to prove the defendant’s negligence as the liability is strict, i.e. without fault. It can be noted that cattle includes cows, asses, pigs, horses, bulls, sheep, and poultry. But dogs and cats are not included in the term cattle because of their tendency, and therefore cats and dogs cannot trespass. Thus, in Buckle v. Holmes[4], the defendant’s cat strayed into the plaintiff’s house where it killed thirteen pigeons. The defendants were not held liable for trespass. He was not liable for killing the pigeons because there was nothing peculiar to this cat alone. The liability under the scienter rule arises only when the defendant had knowledge. For example, a cat is prone to injure mankind. In such a case, knowledge of the defendant that a cat was prone to injure mankind must be established by the plaintiff and, for this, a single instance of the ferocity of such animal is sufficient notice. Thus in Read v. Edwards, the owner of a dog was held liable for his dog’s act of trespassing, chasing and killing certain pheasants which belonged to the plaintiff on the ground then the defendant had knowledge of the particular propensity of his dog.

But where there is trespass by cattle the liability is strict. Scienter or negligence of the owner is not required to be proved. In Ellis v. Loftu Iron Co.[5], the defendant’s horse obtruded its head and feet over the plaintiff’s fence and bit and kicked the plaintiff’s mare. The defendant was held liable for cattle trespass because the liability is strict, and the plaintiff was not required to prove scienter or negligence of the defendant.

It may be noted that the defendant will be liable for the natural consequence of cattle trespass. In Theyer v. Purnell, the defendant’s sheep, infected with scab, trespassed on to the plaintiff’s land and conveyed the same to the plaintiff’s sheep. All these sheep were interned under a government order and the plaintiff was put to a considerable expense. The defendant was held liable for cattle trespass and its irrespective of his knowledge as to the infected condition of the sheep. Similarly, in Wormald v. Cole, the plaintiff was knocked down and injured by the trespassing heifer belonging to the defendant. It was held by the court that the personal injuries to the plaintiff were the direct result of the trespass and the defendant was held liable for the same.

Animal Act, 1971

In England, the Animal Act of 1971 has modified the common law by dividing the animals into two groups ‘dangerous’ and ‘non-dangerous’ which more or less follows the distinction between ‘ferae naturae’ and ‘mansuetae naturae’. Section 6(2) of the Animal Act defines a dangerous animal as “not commonly domesticated” and when fully grown can cause severe damage. When damage is caused by a dangerous animal, its keeper is strictly liable. But when damage is caused by a non-dangerous animal, Section 2(2) of the Act requires the plaintiff to prove that the defendant has the knowledge of certain abnormal characteristics for holding the defendant liable.

In England, the common law rule of Cattle trespass has been replaced by the Animal Act, 1971. Section 4(1) of the Act, provides that where livestock belonging to some person strays on to the land or property of another and causes damage to land or property on it which is the ownership or possession of another and/ or that person incurs expenses in keeping the livestock while it cannot be restored to the person to whom it belongs, the owner of the livestock is liable for the damage and expenses except as otherwise provided by the Act.

The common law remedy i.e., distress damage feasant is abolished. In its place, Section 7 of the Animals Act provides a right to detain the livestock and to sell it at the end of fourteen days. The ancient right of non-liability of the cattle owner if his cattle trespass to a highway and causes damage has been retained in Section 2 of the Act. Similarly, Section 5 of the Act recognizes the well-established law laid down in Tellet v Ward[6], that the occupier of premises adjoining a highway is presumed to have accepted the risk incidental to the passage of ordinary traffic along that highway.

Cattle Trespass Act, 1871

In India, Cattle Trespass Act, 1871, provides that the trespassing cattle can be taken to the pounds established in various places for keeping such cattle. The owner of the cattle can take them back from the pound keeper after payment of the pound fess. However, he is not bound to pay compensation to the owner of the land. The owner of the pig which strays and does not harm to another’s land is liable to pay fine. According to Cattle Trespass Act, 1871, cattle includes elephants, camels, buffaloes, horses, ponies, mares, geldings, colts, mules, asses, pigs, rams, ewes, sheep, lambs, goats, fillies and birds.

The cultivator or occupier of the land or vendee or mortgagee of the crop may seize any cattle trespassing on such land and doing damage to any crop or produce and send the cattle within 24 hours to the pounds. There are other provisions with regard to delivery and sale of cattle, illegal seizure, detention, payment of penalties, etc. in the Act.

In Manton v. Holmes, it was held that unless there be trespass to land to begin with, the action is inapplicable to damage done by the animal to chattels or to human beings on the land. X owned a field and with his consent, the plaintiff put his horse there. Later the defendant, also with X’s consent, put his mare in the field, but he did not notify the plaintiff of this. The mare kicked the horse which had to be destroyed. The defendant was held not liable for cattle trespass for the mare had not been trespassing.

In the States, there are similar provisions with slight modifications as in the Cattle Trespass Act, 1956; Cattle Trespass Act, 1959; Madhya Pradesh Act 23 of 1958; Tamil Nadu Act, 56 of 1959; Kerala Cattle Trespass Act, 1961; Mysore Cattle Trespass Act, 1966, etc. Cattle damaging public roads, canal, and embankments are also liable to be seized by the police officers or other concerned officers and sent to pounds.

Defenses

There are several defenses and they are:

Act of third party

The act of a stranger is a defense to liability under the rule.

Default of the plaintiff

An obvious example is a plaintiff fails to fence a haystack which he is licensed to put upon the defendant’s land and thereby cause the defendant’s cattle to consume the stack. Failure to fence the property may disentitle the plaintiff. But the plaintiff was under a duty to fence towards a third party and has neglected that duty its neglect will not exculpate the defendant. Therefore, if A has covenanted with his landlord C to keep his fence in repair and fails to do so and in consequence, the cattle of his neighbour B to whom he owes no duty to a fence, stray on to A’s land, A can sue B for cattle trespass.

Volunti non fit injuria i.e., consent

The consent of the party is a defense to liability under the rule of law.

Act of God

This defence has been abolished in England.

Inevitable accident

This may be a defense depending upon circumstances. This is the rule especially after the decision of the case in Stanley v. Powell[7].

Distraint

The animal can be seized and detained until compensation is paid. This has now been abolished in England after passing the Animal Act, 1971,

Tender of amends

The owner of the trespassing cattle may make amends by tendering some amount as compensation.

Distress Damage Feasant

“Distress” means the right to detain and “Damage” means “injury” and “Feasant” means “wrongful act”. If a man unlawfully finds another man’s cattle or chattel on his land causing damages, he is entitled to seize and detain the cattle, which are impounded, to force them to compensate for the damages caused by their owners. This right is called the right to damage caused by distress. Distress is usually taken from straying bovines, but any other cattle that illegally encumbers and damages the land of a man can just as well be taken.

The law has always severely restricted the right to arrest and to be an extrajudicial remedy. It must, therefore, be held on the land of the detainer. He has no right to go after and recapture the thing if the thing escapes.

There is no right to distress when there is no infringement. Therefore, when the cattle are driven along a street, they can not be arrested on their driver’s way to the adjacent undisturbed land until there is a reasonable opportunity to drive them back. It is not lawful to take anything under the personal control of someone else by way of distress damage.

Endnotes

[1846] 9 QB 101

132 A. 404, 104 Conn. 126

[1996] 1 SCR 128

[1926] 2 K.B. 125

[1874] LR 10 CP 10

(1882), 10 Q. B. D. 17)

[1891] 1 QR 86

The post Distress Damage Feasant- Animal Rights and Tort Law appeared first on iPleaders.

Distress Damage Feasant- Animal Rights and Tort Law published first on https://namechangers.tumblr.com/

0 notes

juudgeblog · 5 years

Text

What are the Remedies Available in the Law of Torts?

This article is written by Wardah Beg, student, Faculty of Law, Aligarh Muslim University

Introduction

Let us begin this topic by understanding what ‘remedy’ actually means in Law. A party is said to be ‘aggrieved’ when something that they may have been enjoying has been taken away from them by another party. This is an infringement of a party’s rights and it is treatable by law. A legal remedy is one such treatment. When the aggrieved person is taken back to the position that they were enjoying before their rights were infringed, they are said to have been provided with a legal remedy. There are various types of legal remedies. For instance, if something that belongs to you has been taken away from you by a party, the court can either ask them to pay you back in money, or ask them to return your belongings as they were, and may also punish the party in some cases. There are two broad types of remedies in Tort Law.

Judicial Remedies

Extra-Judicial Remedies

Judicial Remedies

As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies are of three main types:

Damages

Injunction

Specific Restitution of Property

Extra-judicial Remedies

On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-judicial remedies. These are of five main types:

Expulsion of trespasser

Re-entry on land

Re-caption of goods

Abatement

Distress Damage Feasant

Now, let us discuss both judicial and extrajudicial remedies in some detail.

click above

#1 Damages

Damages, or legal damages is the amount of money paid to the aggrieved party to bring them back to the position in which they were, before the tort had occurred. They are paid to a plaintiff to help them recover the loss they have suffered. Damages are the primary remedy in a cause of action for torts. The word “damages” should not be confused with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.

Types of damages

Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be compensated or the defendant has to be ‘punished’, there are 4 types of damages:

Contemptuous– contemptuous damages are also called ignominious damages. The amount of money awarded by the court in this case is very low, as to show the court’s disapproval, that is, when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’.

Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been caused to him. For example, in cases of trespass, when damage has not been caused, a legal right is still infringed. Here, the objective is not to compensate the plaintiff.

Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss suffered by him due to the tort.

Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when the defendant has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The objective here is to create a public example and make people cautious of not repeating something similar.

General and Special Damages:

When there is a direct link between the defendant’s wrongful act and the loss suffered by the plaintiff. For instance, a person A, due to his negligence, collides his car with a person B, who has a rare bone condition. In this case, the actual damage suffered by the plaintiff will be compensated, not taking into account the rare bone condition of the plaintiff. General damages are ascertained by calculating the amount of actual loss suffered by the plaintiff. For e.g, physical pain and loss caused due to it, or if the quality of life of the plaintiff is lowered.

Special damages are awarded by proving special loss. There is no straitjacket formula to derive the actual amount. The plaintiff just has to prove the loss suffered by him/her. For e.g., medical expense, loss of wage (prospective), repair or replacement of lost or damaged goods/property.

Damages for nervous or mental shock:

Nervous shock

When, due to a negligent act or any other tortious act, a plaintiff’s nerves are damaged due to shock and trauma, irrespective of whether a physical harm has also been caused with it, he/she is entitled to be compensated for it. The question before the court of law is whether the nervous shock is actually a resulting consequence of the defendant’s act.

Mental shock

Mental shock, on the other hand is the shock to a person’s intellectual or moral sense. Mental shock, too, can be compensated for in a suit for damages. Earlier, it was thought that mental shock cannot really be compensated for, because it cannot be measured, but recently the courts have recognized that the damage in case of mental shock is just as real as a physical injury.

Cases:

McLoughlin v O’Brian

The plaintiff’s husband and three children met with an accident with the defendant, due to the defendant’s negligence. After seeing her husband and children grievously injured, and hearing the news of one of her children’s death, the plaintiff suffered nervous and mental shock and went into a state of clinical depression. The House of Lords in this case ruled in favour of the plaintiff, McLoughlin, whereby she recovered damages for her nervous shock too.

Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai

The plaintiffs in this case were relatives (mother and children) of a middle-aged couple who met with an accident when another moving bus drove over them as soon as they deboarded their own. The court delivered a judgement in favour of the plaintiffs, and they received compensation under the heading of ‘Pain, Shock and Sufferings’.

Measurement of Damages

There is no arithmetic formula to decide the quantum of damages. Therefore, a number of factors, including the facts and circumstances of each case are to be considered to ascertain the damages. Damages are therefore awarded at the discretion of the court.

Remoteness of ‘Damage’

As discussed above, the main aim is to bring the aggrieved party back to the status quo, that is, compensating the plaintiff. As a general rule, damage suffered by the plaintiff should be a direct consequence of the defendant’s act. Any action can have multiple following consequences. A person cannot be held accountable for all the consequences resulting from his act. The remoteness of consequences resulting from a person’s act has been an issue of debate in the Law of Torts over the years. Various tests were developed over time to determine what consequences of an act can a person be held liable for. When there is no cause and effect relationship between the defendant’s act and the injury caused to the plaintiff, the damage is said to be too remote to be compensated.

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)

In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the defendants. While unloading cargo from the ship, the defendant’s employees accidentally knocked a plank into the ship, which caused a spark to ignite, that resulted in an explosion. The question before the court was, whether the damage due to the explosion was a direct result of the act of the defendant’s employee.

Leisboch Case (Liesbosch Dredger v SS Edison)

In this case, the plaintiff’s dredger was damaged and sunk by the defendants (Edison), due to their negligence. The dredger was working under a contract with the terms that some amount had to be paid if the work was not completed on time. The plaintiff did not have enough funds to arrange a new dredger to complete the said work. They claimed all the resulting damages. The court held that the plaintiff’s own lack of funds cannot be compensated by the defendants.

Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)

In this case, the defendants owned a ship (The Wagon Mound No. 1). The plaintiffs were the owners of a dock named Morts Dock. Due to the defendant’s negligence a spark was ignited that set some floating cotton waste nearby on fire, due to which the plaintiff’s wharfs and their ship, the Wagon Mound was damaged.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position that he/she was in before the injury due to the tort occurred, or in other words, to bring him back to the position he would have been in, if the tort did not ever occur.

#2 Injunction

Injunction is an equitable remedy available in torts, granted at the discretion of the court. An equitable remedy is one in which the court, instead of compensating the aggrieved party,asks the other party to perform his part of the promises. So, when a court asks a person to not continue to do something, or to do something positive so as to recover the damage of the aggrieved party, the court is granting an injunction. A very simple example is that of a court ordering a company of builders to build on a land near a hospital, for the construction sounds may be creating a nuisance to the hospital.

An injunction is an order of a court that restrains a person from continuing the commission of a wrongful act, or orders the person to commit a positive act to reverse the results of the wrongful act committed by him, that is, to make good what he has wrongly done. To receive injunction against a party one must prove damage or the possibility of prospective damage (apprehended damage). An injunction can be temporary or permanent, and mandatory or prohibitory. Let us discuss each of them one by one. Law relating to injunctions is found in the Code of Civil Procedure, 1908 and from Section 37 to Section 42 of the Specific Relief Act (henceforth referred to as the Act), 1963.

A suit of injunction can be filed against any individual, group or even the State.

According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual (permanent).

Temporary Injunction

A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the status quo and avoid further damage until the court passes a decree. It prevents the defendant from continuing or repeating the breach that he had been doing. A temporary injunction is granted to prevent the party from suffering through the damages during the court proceedings. They may be granted at any stage during the pendency of the case. Either of the parties can seek an injunction to be granted.The power to grant a temporary injunction is derived from Rule 1 and 2 of Order XXXIX (39) of the Code of Civil Procedure. Certain principles are kept in mind while granting a temporary injunction:

There has to be a prima facie case.

A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)

There has to be an irretrievable damage. (The damage has to be such that cannot be compensated for, in money)

Cases in which temporary injunction is granted

A temporary injunction may be granted in any of the following cases:

An injunction can be granted in favour of a party and against the government if the government is barring the party from doing a lawful act or freely exercising his rights.

Under Section 80 of the CPC, an injunction can be granted against an act done by a government/public officer working in his official capacity.

When the property in dispute is in danger of being damaged or wasted by either of the parties.

In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due legal process, can seek an injunction against his/her landlords.

In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance so as to prevent further damage to the plaintiff while the case is being decided.

In cases of trademark, copyright infringement, etc.

Permanent Injunction

A perpetual or permanent injunction is granted after the court has heard the case from both sides and passes a decree. Here, since it is a court decree, it is final and perpetually applicable. That is, the defendant cannot continue his wrongful act, or has to do a positive act for perpetuity.

Cases in which permanent injunction is granted

To avoid multiplicity of judicial proceedings.

When damages do not adequately compensate the plaintiff.

When the actual damage cannot be ascertained.

Mandatory Injunction

When the court has asked the party to do something, it is a mandatory injunction. That is, when the court compels a party to perform a certain act so as to bring back the aggrieved party or the plaintiff to the position that he/she was in before the commission of the act of the defendant. For example, the court may ask a party to make available some documents, or to deliver goods, etc.

Prohibitory Injunction

When the court has asked the party to not do something, it is a prohibitory injunction.The court prohibits a person, or refrains them from doing something that is wrongful. For instance, it may ask the party to remove an object of nuisance or to stop his act of nuisance.

When can injunctions not be granted

According to Section 41 of the Specific Relief Act, an injunction cannot be granted:

To stop a person from filing a case in the same court in which the injunction suit is sought, unless such an injunction is being asked for, to prevent a multiplicity of proceedings.

To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the one in which injunction is being sought.

To prevent a person from applying to any legislative body

To restrain a person from filing or fighting a criminal case

To prevent the breach of contract, performance of which is not enforced specifically

To prevent an act that is not a clear act of nuisance

To prevent a continuing breach in which the plaintiff has himself acquiesced

When an equally effective relief can be obtained in any other way or through any other sort of proceeding

When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from the assistance of the court.

When the plaintiff has no personal interest in the said matter.

Limitation period

According to Article 58 of the Limitation Act, 1963, the period of limitation for filing an injunction suit is three years from when the ‘right to sue first accrues’, that is, when the right to cause of action commences, not the cause of action itself. It is an important question of law as to when the cause of action actually arises. In the case of Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan Chettiar, it was held that the right to sue accrues “when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit”.

Case:

M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products

In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery Products for infringement of their trademark on their product ‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the trademark was adopted by them in 1961, and that the defendants had wrongly got themselves registered a copyright similar to them. The court ruled in favour of the plaintiff granting the defendant an interim injunction.

#3 Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the restoration of his property.

Extra-Judicial Remedies

When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-judicial remedies. In this, the parties take the law in their own hands. Some examples are:

Expulsion of trespasser

A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are:

The person should be entitled to immediate possession of his property.

The force used by the owner should be reasonable according to the circumstances.

Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself.

Re-entry on land

The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of force only.

Re-caption of goods

The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Re-caption of goods is different from specific restitution in that it is an extra-judicial remedy, in which the person need not ask the court for assistance, instead, takes the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A.

Abatement

In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After giving due notice to A, B can himself cut or remove the branches if they’re causing him nuisance.

Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him.

Conclusion

In torts, the object behind remedying a party is to take the aggrieved party back to the status or position that they were enjoying before the occurrence of tort. It is not to punish the defendant, as in crime. Remedies can be judicial and extrajudicial. When due process of law is required for a party to gain remedy, and the courts are involved, the remedies are called judicial remedies. When the law is taken in his/her own hands by the parties, they are called extra-judicial remedies.

The post What are the Remedies Available in the Law of Torts? appeared first on iPleaders.

What are the Remedies Available in the Law of Torts? syndicated from https://namechangersmumbai.wordpress.com/

0 notes

loyallogic · 5 years

Text

What are the Remedies Available in the Law of Torts?

This article is written by Wardah Beg, student, Faculty of Law, Aligarh Muslim University

Introduction

Judicial Remedies

Extra-Judicial Remedies

Judicial Remedies

As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies are of three main types:

Damages

Injunction

Specific Restitution of Property

Extra-judicial Remedies

On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-judicial remedies. These are of five main types:

Expulsion of trespasser

Re-entry on land

Re-caption of goods

Abatement

Distress Damage Feasant

Now, let us discuss both judicial and extrajudicial remedies in some detail.

click above

#1 Damages

Types of damages

Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be compensated or the defendant has to be ‘punished’, there are 4 types of damages:

Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss suffered by him due to the tort.

General and Special Damages:

Damages for nervous or mental shock:

Nervous shock

Mental shock

Cases:

McLoughlin v O’Brian

Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai

Measurement of Damages

Remoteness of ‘Damage’

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)

Leisboch Case (Liesbosch Dredger v SS Edison)

Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)

Purpose of Damages in Torts

#2 Injunction

A suit of injunction can be filed against any individual, group or even the State.

According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual (permanent).

Temporary Injunction

There has to be a prima facie case.

A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)

There has to be an irretrievable damage. (The damage has to be such that cannot be compensated for, in money)

Cases in which temporary injunction is granted

A temporary injunction may be granted in any of the following cases:

An injunction can be granted in favour of a party and against the government if the government is barring the party from doing a lawful act or freely exercising his rights.

Under Section 80 of the CPC, an injunction can be granted against an act done by a government/public officer working in his official capacity.

When the property in dispute is in danger of being damaged or wasted by either of the parties.

In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due legal process, can seek an injunction against his/her landlords.

In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance so as to prevent further damage to the plaintiff while the case is being decided.

In cases of trademark, copyright infringement, etc.

Permanent Injunction

Cases in which permanent injunction is granted

To avoid multiplicity of judicial proceedings.

When damages do not adequately compensate the plaintiff.

When the actual damage cannot be ascertained.

Mandatory Injunction

Prohibitory Injunction

When can injunctions not be granted

According to Section 41 of the Specific Relief Act, an injunction cannot be granted:

To stop a person from filing a case in the same court in which the injunction suit is sought, unless such an injunction is being asked for, to prevent a multiplicity of proceedings.

To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the one in which injunction is being sought.

To prevent a person from applying to any legislative body

To restrain a person from filing or fighting a criminal case

To prevent the breach of contract, performance of which is not enforced specifically

To prevent an act that is not a clear act of nuisance

To prevent a continuing breach in which the plaintiff has himself acquiesced

When an equally effective relief can be obtained in any other way or through any other sort of proceeding

When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from the assistance of the court.

When the plaintiff has no personal interest in the said matter.

Limitation period

Case:

M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products

#3 Specific Restitution of Property

Extra-Judicial Remedies

Expulsion of trespasser

A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are:

The person should be entitled to immediate possession of his property.

The force used by the owner should be reasonable according to the circumstances.

Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself.

Re-entry on land

The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of force only.

Re-caption of goods

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A.

Abatement

In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance.

Distress Damage Feasant

Conclusion

The post What are the Remedies Available in the Law of Torts? appeared first on iPleaders.

What are the Remedies Available in the Law of Torts? published first on https://namechangers.tumblr.com/

0 notes