1. REMEDI ES

2. Remedies can be divided into two kinds: Judicial Extra Judicial Judicial remedies are: a.) Damages b.) Injunction c.) Specific Restitution of property.

3. Damages This is the essential remedy for law of torts which distinguishes a tort from other civil injuries which are not torts. Damages evolved from the court of chancery while Injunction stemmed from equity. Thus damages is available as of right in all cases of tort while injunction is basically supplementary to the remedy of damages and it is usually granted at the instance of the court (or courts discretion) in cases where damages would not afford adequate redress.

4. Specific restitution and Extra-judicial remedies Specific restitution has obvious similarities with injunctions though it was available in the court of common law. It is an order of court by which property which has been wrongfully taken from the plaintiff is restored to him. Extra-judicial remedies or remedies by act of party are: (a.) Self-defence (b.) expulsion of trespassers (c.) Re-entry on land (d.) Recaption of Chattels (e.)Distress damage feasant f.) Abatement of Nuisance

5. JUDICIAL REMEDIES: DAMAGES : what is damages This can be defined as a sum of money, awarded at the discretion of the court, to a person who has been wronged by the act of another, not exceeding the sum claimed by such person. It could also be described as a remedy by way of monetary compensation which the plaintiff claims to recover, in an action for tort, on account of the damage caused by that act.

6. Why damages? The primary objective of awarding damages is to offer pecuniary compensation to the party injured. Types of damages: Ordinary, nominal and exemplary (1) Ordinary (Real or Substantial) Damages Ordinary damages are a sum of money awarded as a compensation for the actual loss suffered by the plaintiff by reason of the injury complained of. Such amount is not necessarily that which it would cost to restore the plaintiff to his former condition.

7. Compensation and not restitution In awarding damages, the court, is influenced by other considerations as well. Compensation and not restitution, is generally the object of the remedy in tort, and in no case, therefore does the award exceed the amount claimed by the plaintiff himself.

8. Nominal Damages This is a trivial sum of money, such as shilling or a penny, awarded not by way of compensation for any actual loss, but merely as a recognition of the existence of some legal right vested in the plaintiff and violated by the defendant. They are a sum of so little value as compared with the cost and trouble of suing that they are said to have ‘’no existence in point of quantity’’. Nominal damages can be seen awarded when an absolute right has been infringed under either of the two circumstances. The nature of the case may determine whether this damage is honourable to the plaintiff.

9. Instances where nominal damages can be seen In some cases where the action has been brought merely to establish a right that is, ‘’contemptuous’’ damage no substantial harm or loss having been suffered, the award really operates as a simple declaration of rights between the parties, e.g. in actions of trespass brought to settle disputed claims to rights of way, easements,etc.(breach of contract) In other cases, the plaintiff has suffered a legal wrong no doubt, but he may have by his own conduct or character showed himself as unworthy of any real damages. Thus, an illusionary sum such as farthing may be awarded where in a case of defamation, the words spoken or written by the defendant cannot be fully justified, and yet the plaintiff has done so much to provoke them, or is generally of such a worthless character, that he does not deserve any substantial compensation.

10. Distinction between nominal and ordinary damages chiefly rests on the nature of the rights infringed. Nominal damages can be obtained only in the case of wrongs actionable per se or absolute rights, e.g., right of property (which include reputation), which give rise to an action for damages without regard to the amount of the harm done. Constantine V. Imperial Hotels Ltd [1944] KB 693 according to the principle injuria sine damno (means when an act or omission does not constitute infringement of a legal right pertaining to the plaintiff, no action will lie notwithstanding any loss or harm resulting from such act or omission)

11. Distinction between nominal and ordinary damages chiefly rests on the nature of the rights infringed. Ordinary damages, on the other hand, are chiefly awarded in cases where action lies only on proof of actual damage, e.g. negligence, nuisance, deceit, etc. In this case real damage is the foundation of the action and smallness of the amount of damages actually awarded will not make it nominal. On the other hand, in torts actionable per se, if actual loss be proved, the amount awarded for that loss is not to be deemed nominal.

12. 3.) Exemplary, Aggravated, Vindictive or Punitive Damages Exemplary damages are a sum of money awarded in excess of any material loss actually suffered by the plaintiff. These are awarded where there is great injury by reason of aggravating circumstances accompanying the wrong; no attempt is made to measure compensation by any numerical rule, but a heavy amount is awarded as an expression of indignation at the conduct of the defendant whenever he has shown a conscious and contumelious disregard of the plaintiffs right and convenience.

13. Damage given to deter society from such act Exemplary damages may be obtained in cases of wanton trespass accompanied with violent behaviour, or of seduction of a man’s daughter with deliberate fraud or of gross defamation actuated by sheer spite or jealousy, for torts like false imprisonment, malicious prosecution (which are actions against police) see Thompson V. Metropolitan Police Commissioner [1998] QB 498, Manley V. MPC [2006] EWCA Civ 879

14. See Uren V. John Fair fax & Sons Pty Ltd (1967) 117 C.L.R Windeyer J. ‘ ’It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed’’. For this reason compensation by damages operates in two ways-as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Such damages are intended at once to offer a solatium to the plaintiff and to serve as punishment to the defendant taking account of the defendant’s moral conduct.

15. 4.) General and Special Damages When damage caused is general, the claim of the plaintiff is for general damages, when the damage caused is special, the claim of the plaintiff is special damages. General damages is the kind of damage which the law presumes to follow from the wrong complained of and which, therefore, need not be expressly set out in the plaintiffs pleadings.

16. Special damage Special damage on the other hand, is damage of such a kind that will not be presumed by the law and must therefore be expressly alleged in a claim. Examples: (a.) in an action for libel, the plaintiff need not plead what loss he has incurred by the attack on his reputation, to recover general damages; as soon as he proves his reputation and that it has been affected by the defendant’s false statement, the court would award damages on the assumption that some damages must have been done to the plaintiff by such statement.

17. Example, how special damage applys (b.) on the other hand, if the plaintiff claims that, in addition to such general damages, he has incurred special loss like loss of employment or loss of customers as a result of such defamatory publication, he must plead those facts on which such special damage is based; otherwise, the claim for special damages would be disallowed and the plaintiff would get only general damages.

18. Special damages: instances Similarly in an action for damages for personal injuries caused by the negligence of the defendant, besides a reasonable sum for the pain and suffering endured by the plaintiff, the plaintiff is allowed to recover the expenses incurred for medical and other necessary attendance during the period of his illness as well as a fair recompense for the loss of profits of his profession or business during such period, if the relevant facts are pleaded to support the claim for special damages.

19. Measure of Damages This expression refers to the footing upon which the amount of damages to be awarded in a given case may be calculated. Assessment of damages is in the court discretion. The assessment is based on various factors in different cases e.g in a case of seduction, defamation, malicious prosecution, the position, rank and feeling of the party injured and the wrong doer must be considered as aggravating.

20. Measure of Damages It must be noted that the same principle that determines the existence of liability determines also the measure of damages to be awarded. The wrongdoer is liable only for the direct consequence of his act and in no case will remote factors be considered in determining damages. In every suit for tort the court may have regard to the knowledge, intention, motive and conduct of either or both parties and may increase or reduce the amount of the award accordingly.

21. Injunctions An injunction is ‘’a judicial order the general purpose of which is to restrain the commission, continuance, or repetition of some wrongful act of the party enjoined’’. Thus, the remedy of injunction is not like the remedy of damages, universally applicable in actions of tort, but is available in those kinds of wrongs where the remedy of damages will be inadequate or practically useless. It is granted at the discretion of the court, but this discretion is exercised according to well settled judicial principles. For instance it will be refused if the damage is too trifling or the plaintiffs conduct has been inequitable, or if the granting of it is unduly harsh.

22. Injunctions are of two kinds, Prohibitory Mandatory. A prohibiotry injunction is an order restraining the defendant from committing or repeating an injurious act e.g, a trespass to land or the erection of a building which would obstruct the plaintiff right to light. A mandatory injunction is an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him, e.g., to pulldown a building which he has already erected to the obstruction of the plaintiffs light.

23. Specific restitution of property This remedy is available only in the case of certain specific torts, such as when a person is disposed of his property, moveable or immoveable. At common law an action for specific restitution of chattels is called detinue, and that for land is known as ejectment.

24. Extra-judicial Remedies Self-help: it is lawful for every individual to use a degree of force for the protection of his person or property. This is a method of redress which may be used when the party wronged can, by his own lawful act put an end to the state of things by which he is wronged. Right of self-help is subject to the following limitations (i) That the force must not be unnecessary (ii) disproportionate to the evil to be presented. Examples of right to self-help; Expulsion of trespasser: it is unlawful for any occupier of land to use a reasonable degree of force to prevent a trespasser from entering his land, or to eject him after he has entered.

25. Extra-judicial Remedies Re-entry on land: the forcible ejectment of a trespasser, must be distinguished from re-entry upon land of which possession has been wrongfully taken. When a trespasser has not merely entered but has disposed the occupier, the remedy of the latter is different from that in the preceding case. In this case the person disposed may retake possession by his own act, provided he can do so peaceably and without the use of force. Recaption of Chattel: anyone entitled to the possession of a chattel may defend the possession or retake the chattel, if it has been unlawfully taken out of his possession, either by the use of peaceable means or by the use of reasonable force.

26. Extra-judicial Remedies Distress damage feasant (i.e. the distraint of things doing damage) it is lawful for any occupier of land to seize any cattle or other chattels which are wrongfully upon his land doing damage there, and to detain them till the payment of compensation for the damage done. The right extends to trespass by all chattels, inanimate or animate (i) the chattel seized must have done actual damage to person or property on the land. (ii) Seizure must be made at the time the damage is done and on the land itself (iii) the right does not include a right of sale but merely a right to detain until payment of compensation by