General Defence:

General defence are a set of 'excuses' that you can undertake to escape liability. When
the defendant is held liable they may in some cases avoid his liability by taking the
plea of some defence. There are some specific defence which are peculiar to some
particular wrongs. Eg, in an action for defamation, the defence of privilege, fair
comment or justification are available There are some general defence which may be
taken against action for number of wrongs. Eg the general defence of “Consent” may
be taken whether the action is for trespass, defamation, false imprisonment, or some
other wrongs.

Following are some of the General Defence under law of Torts.

• Volenti Non fit Injuria

• Act of God

• Inevitable Accident

• Necessity

• Private Defence

• Statutory Authority

Volenti Non fit Injuria:

The term Volenti Non Fit Injuria is a Latin maxim which refers to a willing
person, an injury is not done. It is a common law doctrine, according to this
doctrine the person who voluntarily gives consent for any harm to suffer would not
be liable to claim any damages for the same and this consent serves as a good
defence against the plaintiff.

In case a person gives his consent to doing of an act which leads to him getting
injured, then even if an injury is caused by the other person, he cannot claim any damages
from that person because the act was one for which he voluntarily consented. The consent
of the plaintiff acts as a defence and this defence is called volenti non fit injuria which
means to a willing person no injury happens.

• Illustration:

If A has a bike whose brakes do not work and B knowing about the conditions of the
bike still chooses to sit on it with A driving it and due to the failure of such brakes they
both sustain injuries in an accident, B cannot claim relief from A because he had
voluntarily consented to sit on the bike.
 For the application of the defence of volenti non fit injuria there are some essential
elements or conditions which should be present in a case and only when they are fulfilled,
this defence can be taken to prevent liability.

1) The consent must be freely given.

2) The consent must not be to an unlawful and illegal act.

3) The Knowledge of risk is not the same thing as consent.

Consent of the plaintiff:

The consent of the plaintiff is very important in the defence of volenti non
fit injuria because only when he voluntarily gives his consent to an act, the
defendant can take this defence.

In the case of Hall v. Brookland (1932) All E.R. Rep 208, the plaintiff
went to see a car race in which two cars collided with each other and as a result of
the collision, the plaintiff who was sitting as an audience was also injured when
one of the car flew into the audience. Here the defence of volenti non fit injuria
was applied because the plaintiff had given his consent to such a risk by going to
the race.

Consent of the Plaintiff must be free:

When a plaintiff gives his consent for an act such consent should be free from
any coercion, fraud or any other such means by which the free consent can be affected.

For e.g. A has a heart problem and he goes to a hospital for surgery. There he
is informed by the surgeon that the required surgery is very complicated and there is a
chance of the surgery failing which can cause his death. If A gives his consent to
have the surgery and the surgeon despite taking all reasonable care in doing the
surgery is not able to save A, then the surgeon cannot be held liable because A had
given his consent for it and this consent was given freely.

Illegal Acts:
If the consent is given for an act which is not allowed by law then, even on the
fulfillment of all the essential condition of this defence, the liability cannot be escape
and thus in such cases, this defence becomes inoperative.
Illustration: If A and B decide to do a fight with sharp swords, when such an act is
prohibited by law, and A suffers a big cut due to which he suffers serious injuries, then in
such case B cannot take the defence of having A’s consent in doing this act because it was
prohibited by law and thus B will be liable.
The Knowledge of risk is not the same thing as consent:

Whenever the plaintiff is aware of the possibility of harm which is likely to be caused
by an act and when he still accepts to do that act and therefore agrees to suffer the
injury, defendant is relieved of his liability.

But only having knowledge about the risk is not enough for the application of this
defence, It is known as Scienti non fit injuria, which means that mere knowledge
does not mean consent to the risk. Thus having knowledge is only a partial
fulfillment of the conditions for the application of volenti non fit injuria.

Illustration: A goes for bungee jumping and he knows that he might get injured by it
but he still decides to do it and as a result, he suffers injury despite all the necessary
care being taken by the organizer. Here A cannot claim damages from the organizers
because he had full knowledge of the risks and he had voluntarily agreed to suffer
that injury by choosing to do bungee jumping.

In Smith v. Baker & sons, (1891), the plaintiff was an employee of the
defendant and the site where he used to work had a crane which carried rocks over
their heads. The plaintiff had also complained to the defendant about it. One day the
plaintiff was injured because of these rocks falling on him and thus he sued the
defendant for damage. It was held that the defendant was liable and had to pay
damages to the plaintiff because the plaintiff had consented to the danger of the job
but not to the lack of care.

Burden of proof:

• In the cases where the defendant is taking the defence of volenti non fit injuria, the
burden of proof is on him to show that the plaintiff had full knowledge of the act and
he had consented to the risk involved in the act and the defendant has to show that
the plaintiff was also aware of the extent of risk which was involved in the act for
successfully taking this defence.

• Illustration: A has to undergo an operation for his eye infection and the doctor fails
to inform him about the risk of losing his vision due to the operation, as a result, A
takes the operation believing that there is no such risk to his eye. In the operation, if
A loses his eyesight, the doctor will be held liable because A did not have the
knowledge about the extent of the risk which was involved in the operation and
therefore, the defence of volenti non-fit injuria cannot be taken.
 Limitations on the application of volenti non fit injuria:
There are certain limitations under which the defence of volenti non fit injuria
cannot be taken by a defendant even if the essentials of this defence are present in
the case.

1) Rescue Cases:
When the plaintiff suffers an injury as a result of doing an act which
he knows is likely to cause harm to him but it is an act to rescue someone, then this
defence will not apply and the defendant will be held liable.

Illustration:

A fire is caused due to the negligence of ‘A’ and ‘B’ is trapped inside
the fire. ‘C’ sees ‘B’ and jumps into the fire to rescue him but in doing so he is also
burned. Here even though ‘C’went into the fire voluntarily, knowing fully well that he
may be burned, ‘A’ will be held liable for negligence and the defence of volenti non fit
injuria cannot be applied in this case. Therefore ‘C’is entitled to receive damages from
‘A’.

Illegal Acts:
If the consent is given for an act which is not allowed by law then, even on the
fulfillment of all the essential conditions of this defence, the liability cannot be escaped
and thus in such cases, this defence becomes inoperative.

Illustration: If ‘A’ and ‘B’ decide to do a fight with sharp swords, when such an act
is prohibited by law, and ‘A’ suffers a big cut due to which he suffers serious
injuries, then in such case ‘B’ cannot take the defence of having A’s consent in
doing this act because it was prohibited by law and thus ‘B’ will be liable.

2) Negligence of the defendant:

The defence of volenti non fit injuria is not applicable in a case where the defendant
has been negligent. Thus only where there is no negligence by the defendant, he can
claim this defence to escape liability.
Illustration: If A undergoes a heart operation and he gives his consent for it even though he
knows that there is a risk of the operation failing which can cause his death, the surgeon will
not be liable if A dies as a result of the surgery if he had taken all due care. But if the
operation had failed because of the negligence in carrying out the surgery then in such a case,
the surgeon cannot claim the defence of having received the consent of A and he will be
liable because there was negligence on his part in conducting the surgery.

In the case of Slater v. Clay Cros Co. Ltd. 1956, the plaintiff was hit by a train in the
tunnel of the defendant railway company. The railway company had given instructions to
all the drivers of its trains that they have to blow the whistle at the entrance of the tunnel and
they should also slow the speed of the train but the driver did not follow these instructions and
negligently drove it inside the tunnel, as a result, the plaintiff was injured.

The defendant had taken the defence of volenti non fit injuria but the Court held that
this defence could not be applied because even though the plaintiff took the risk of walking
inside the tunnel, this risk was enhanced by the negligence of the driver. Thus, when a
plaintiff gives his consent to take some risk, there is a presumption that the defendant has not
been negligent.

3) Act of God Or Vis Major:

An act of God is a general defence used in cases of torts when an event over
which the defendant has no control over occurs and the damage is caused by the
forces of nature. In those cases, the defendant will not be liable in law of tort for
such inadvertent damage.
Vis major (Latin term which means superior force) is defined, as a loss
that results immediately from a natural cause without the intervention of man, and
could not have been prevented by the exercise of prudence, diligence, and care.

According to Salmond- an act of God includes those act which a man

cannot avoid by taking reasonable care. Such accidents are the result of natural
forces and are incoherent with the agency of man

Thus it is an act which is due to natural causes directly and exclusively

without human intervention, and that it could not have been prevented by any amount
of foresight and pains and care reasonably to have been expected from him i.e. the
defendant.

Elements Of Act Of God:

i) Natural Causes: An act of God is an uncommon, extraordinary and unforeseen
manifestation of the forces of nature, or a misfortune or accident arising from
inevitable necessity. An act of god cannot prevent by reasonable human foresight and
care.

ii) An Occurrence Not Reasonably Forseeable:

The basic and prime element of an act of god is the happening of an

unforeseeable event. For this, the damage caused by an unforeseen and
uncontrollable natural event is not compensable as it could not have been prevented
or avoided by foresight or prudence of man.

Moreover, courts are of the opinion that the act of God

defence exists only if the event is so exceptional and could not have been anticipated
or expected by the long history of climate variations in the locality. It is constructed
by only the memory of man i.e. recorded history. The courts may demand expert
 testimonies to prove that an event was unforeseeable.

iii) Impossible to prevent by any reasonable precautions:

It means practically impossible to resist. In an incident where a
human factor was present, even though the harm could not be prevented, the fact
that the human factor exercised reasonable care and precautions to prevent the
harm has to be proved if the defence of act of God has to prevail.

Case Laws:

In the case of Nichols v. Marshland the defendant has a number of artificial

lakes on his land. Extraordinary rain such as had never been witnessed in living
memory caused the banks of the lakes to burst and the escaping water carried away
four bridges belonging to the plaintiff. It was held that the plaintiff's bridges were
swept by an act of God and the defendant was not liable.

In the case of Blyth v. Birmingham Water Works Co, the

defendants had constructed water pipes which were reasonably strong
enough to withstand severe frost. There was an unprecented severe frost that
year causing the pipes to burst resulting in severe damage to the plaintiff's
property. It was held that though frost is a natural phenomenon, the
occurrence of an unforeseen severe frost can be attributed to an act of God,
thus the relieving the defendants of any liability.

iv) Inevitable Accident: An inevitable accident is a general defence in the law of

tort. The inevitable accident which is also known as unavoidable accident says that a
person cannot be held liable for an accident which was not foreseeable despite all care and
caution taken from his side. Law states that a high degree of precaution is not required ,
reasonable care is sufficient.

Example: If A was driving a car and he was all in his senses and took all due care,
but suddenly due to mechanical part failure his car loses his balance and hits a passer-
by. In this case, the driver would not be liable as he took all precautions from his side.
The accident was unavoidable.

Act of God can also be sometimes classed in inevitable accidents. Eg: A

was driving a car with all the reasonable care from his part. Suddenly due to heavy
rain and storm the road collapsed and A’s car hit many pedestrians. Here also the
driver would not be liable. It was completely out of his hand.

Sir Frederick Pollock has defined an inevitable accident as, “not avoidable by
any such precautions as a reasonable man, doing such an act then there could be
 expected to take.”

The essential element of inevitable accident:

1) The accident should have been unforeseeable.

2) The event was out of scope and had no means to avoid it.
3) Reasonable care and caution should be taken.
For the defendant to use the defence of inevitable accident, it is necessary to show mainly
two things:

• There was no intention on the part of the defendant.

• And, the collision could not have been avoided with reasonable care.

CASE LAWS:
In Assam State Coop,etc Federation Ltd vs Smt Anubha Sinha, AIR 2001 Guwahati,
the defendant premises belonging to the plaintiff were let out to the defendant. The
defendant I,e tenant requested the landlord to repair the electric wiring, which was
defective, but the landlord failed to repair the same. There occurred an accidental
fire in those premises probably due to short circuit of electric connection. There was
found to be no negligence on the part of the tenant.

In an action by the landlord to claim compensation from the tenant, it

was held that since it was a case of inevitable accident, the tenant could not be made
liable for the same.

v) Necessity:
Necessity is a defence to both the criminal law and the civil law, that is, if an action was
‘necessary’ to prevent a greater harm that can be used to avoid both criminal and civil
liabilities. The Black’s Law Dictionary defines the word ‘necessity’ as ‘Controlling force;
irresistible compulsion; a power or impulse so great that it admits no choice of conduct.’
‘Necessity knows no law’. In order to avoid or prevent a great loss or harm, a
defendant can cause lesser harm that is justified. The act of the defendant may be not
legal but if it is to avoid major damage then he can plead this defence.
Essentials:

• When the defendant acts to avoid a significant risk of harm.

• His causing of harm should be justified.

An act causing damage, if done under necessity to prevent greater harm is not
actionable even though the harm was caused intentionally.

Necessity is regarded as a defence only to the maintenance of the public

good and self protection. It is limited to case involving an urgent situation. Eg
throwing goods overboard a ship to lighten a ship in storm is necessary for saving the
ship or the person on board the ship. Or pulling down a house to stop a further spread
of fire is necessary.

In Cope vs Sharpe 1891, the defendant entered the plaintiff’s land to prevent
the spread of fire to the adjoining land over which the defendant’s master has a
shooting rights. Since the defendant’s act was considered to be reasonably necessary
to save the game from the real and imminent danger, it was held that the defendant
was not liable for trespass.

vi) Private Defence:

Among the general defence in tort, private defence is the most common.
When a defendant tries to protect his body or property or any other person’s property,
harms another person by using reasonable force, under an imminent-danger and
where there is no time to report instantly to the authority, it is Private Defence. The
harm done should be proportional according to the nature of the circumstances.

Essentials:

1) Imminent Danger:
There should be an immediate threat over the life or property of the defendant or another
person’s property in which there is no time to report to the nearest authority. If the
defendant is not able to contact that specific authority, then he can start the private
defence.

2) Proportional Force:
The defendant should apply a reasonable force. It should not be in excess of what is required.
Eg. If a thief breaks into the defendant’s personal property and tries to injure the defendant by
beating him with a rod, then the defendant should tackle the thief using proportional force. If
he is using a shotgun, then he can fire it on thief’s legs instead of his chest/forehead or it would
be unreasonable.
In RAMANUJA MUDALI V. M. GANGAN AIR 1984
A land owner i.e. the defendant had laid a network of live wires on his land.
The plaintiff in order to reach his own land tried to cross his land at 10 p.m. He received a
shock and sustained some serious injuries due to the live wire and there was no notice
regarding it. The defendant was held liable in this case and the use of live wires is not
justified in the case.

IN BIRD V. HOLBROOK 1825

The defendant fixed up spring guns in his garden without displaying

any notice regarding the same and the plaintiff who was a trespasser suffered injuries due to
its automatic discharge. The court held that this act of the defendant is not justified and the
plaintiff is entitled to get compensation for the injuries suffered by him.

vii) Statutory Authority:

Statutory Authority is a body which has received powers to do something as
conferred by law. If an act is authorized by any act or statute, then it is not actionable even if
it would constitute a tort otherwise. It is a complete defence and the injured party has no
remedy except for claiming compensation as may have been provided by the statute.
Immunity under statutory authority is not given only for the harm which is obvious but also
for the harm which is incidental.
To understand this, let us consider the following example: “ A” builds a cottage away from
the city in order to live a peaceful and a noise-free life. However, after few months from “A”
moving into his new cottage, the railway authorities with the orders from the government
start constructing a railway line beside A’s house. After, the construction was complete, the
trains start to pass through the line on a regular basis. This caused huge inconvenience to A,
as there were constant trains moving to and fro, vibrations, smoke and emissions from the
train.

“A” files a suit against the railway authorities on private nuisance. Will A’s
claim stand? No. Why? The act to construct a railway line beside A’s house was an
act authorized by the government. However, if the law states, that A could receive any
compensation for this act, then “A” will be entitled to receive such compensation.

• IN HAMMER SMITH RAIL CO. V. BRAND [1869]

The value of the property of the plaintiff depreciated due to

the loud noise and vibrations produced from the running trains on the railway line
which was constructed under a statutory provision. The court held that nothing can
be claimed for the damage suffered as it was done as per the statutory provisions
and if something is authorized by any statute or legislature then it serves as a
complete defence. The defendant was held not liable in the case.

• IN SMITH V. LONDON AND SOUTH WESTERN RAILWAY CO (1869-70) the

servants of a railway company negligently left the trimmings of hedges near the
railway line. The sparks from the engine set fire to those hedges and due to high
winds, it got spread to the plaintiff’s cottage which was not very far from the line.
The court held that the railway authority was negligent in leaving the grass hedges
 near the railway line and the plaintiff was entitled to claim compensation for the loss

VICARIOUS LIABILITY:
Vicarious liability, sometimes referred to as “imputed liability,” is a legal concept that
assigns liability to an individual who did not actually cause the harm, but who has a
specific superior legal relationship to the person who did cause the harm. Vicarious
liability most commonly comes into play when an employee has acted in a negligent
manner for which the employer will be held responsible.

The general principle of law is that a person is liable for his own actions and not
for the acts of others, but in certain kinds of cases a person is held liable for the act of
another because of special relationship subsisting between them. This is vicarious
liability. For example - Master and Servant, Company and Directors etc.

• Constituents Of Vicarious Liability

The constituent of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Principles of vicarious liability -: Vicarious liability emerges from the following
principles –

1) Qui facit per alium facit per se - Qui facit per alium facit per se this is Latin Maxim
which means, he who does an act through another, is deemed in law to do himself. when
a person
authorizes another to perform an act and a tort is committed while performing the act, the
former is liable as if he had committed it himself.

2) Respondent superior - It means " let the superior be liable". if the liability is imposed
on a Superior man ignoring the weaker man, the injured party would get the appropriate
remedy

Liability arising out of a special relationship: Vicarious liability may arise where the
doer of the act and the person sought to be held liable therefore are related to each other
as:

• Master and Servant

• Employer and Employee.

 • Master/Owner and Independent Contractor

• Principal and Agent

• Company and Directors

• Firm and Partners

Master and Servant:

“A master is the person who is legally entitled to give such orders and to have
them obeyed.” “Master literally means one who employs another subject to certain terms
and conditions to work under his lawful orders and supervision.” The relation of master
and servant exists where the employer can not only direct what work the servant is to do,
but also control the manner of doing such work.

“A servant is a person employed by another to do work under the directions

and control of his master.” “A servant is one who voluntarily agrees whether for wages or
not, to subject himself during the period of service to the lawful orders and directions of
another, in respect of work to be done by him.” If a servant does a wrongful act in the
course of his employment, the master is liable for it. The servant is also liable.

Vicarious Liability of Master for torts by Servant: In a Master-Servant relationship, the

master employs the services of the servant and he works on the command of master and
thus a special relation exists between the two and in case of a tort committed by the servant,
his master is also held liable.There are many cases in which the servant does an act for his
master and thus in law, it is deemed that the master was doing that act himself, therefore if
the servant commits an unlawful act the master will also be held liable for the same. This
liability of the master is based on the following two maxim........

1. Qui facit per alium facit per se: – It means that whenever a person gets something done
by another person then the person is viewed to be doing such an act himself.

2. Respondant Superior: – It means that the superior should be held responsible for the
acts done by his subordinate.

These two maxims have played a significant role in the development of

the law of vicarious liability of the master.

Essentials of Vicarious liability in Master-Servant Relationship:

These essential conditions have to be followed for the vicarious liability of master to arise:
–

• The servant has committed an act which amounts to a tort.

• Such a tortious act is committed by the servant during the course of his employment
under the master.

Various ways in which liability of Master arises:

• Wrong done as a natural consequence of an act by Servant for Master with due
care

• Wrong due to Negligence of Worker.

 • Wrong by excess or mistaken execution of a lawful authority.

• Wrong committed wilfully by a servant with the intention of serving the

purpose of the master.

• Wrong by Servant’s Fraudulent Act.

IN PUSHPABAI PURSHOTTAM UDESHI & ORS. V. RANJIT

GINNING & PRESSING CO. (P), deceased was travelling in a car driven by the
manager of the respondent company and it met with an accident as a result of which
he died. The dependents of the deceased filed a claim and the tribunal allowed
damages but on appeal to the High Court, it was set aside on the grounds that the
accident does not make the respondent company liable. But the Supreme Court in its
judgement overruled the judgement of the High Court and held that from the facts of
the case it was clear that the accident had occurred due to the negligence of the
manager who was driving the vehicle in the course of his employment and therefore,
the respondent company was liable for his negligent act.

IN GREGORY V. PIPER(1829) 9 B & C 591, the

defendant and plaintiff had some disputes between them and the defendant, therefore,
ordered his servant to place rubbish across a pathway to prevent the plaintiff from
proceeding on that way and the servant took all care to ensure that no part of it was
touching the part of the plaintiff’s property but with the passage of some time. The
rubbish slid down and touched the walls of the plaintiff and thus he sued for trespass.
The defendant was held liable despite his servant taking all due care.

JOINT TORT FEASORS:

When a tort is committed by several persons, all the persons involved in it become joint tort
feasor. In addition to this, all persons will be responsible for the same tort and will be deemed
to be joint wrongdoers in the eyes of law. In order to establish the wrong committed by joint
tort feasors, there must be some connection between the act of one alleged tortfeasor to that
of the other.

IN PALGHAT COIMBATORE TRANSPORT CO. V. NARAYANA

There was a collision between two buses which resulted in the death of
one of the passengers, further in a suit filed by the representatives of the
deceased under Fatal Accidents Act, it was held that the owners of both the
bus companies would be liable.

Circumstances under which joint liability arises:

• Agency- The concept of agency provides that, whenever one person employees,
authorizes or procures another person to commit a tort, the law takes into account
the wrong of both of them and eventually, both the principal and the agent become
jointly and individually responsible for the actions of the agent.
 • Vicarious liability- Vicarious liability is a concept in law, whereby, the liability is
assigned on a person who did not commit the wrong but has a superior legal relation
with the person who actually committed the wrong. The situations of vicarious
liability mostly arise in case of employee and employer relations. In the case of
vicarious liability, both, the person who commits a tort and the person vicariously
liable for the wrong are deemed to be joint tortfeasors.
• Joint or common action- In the law of torts two or more persons are said to be
joint tortfeasors if they act jointly in the tort or a same suit of action is followed if
one defendant has incited another to commit the tort.

Capacity to sue:
• It refers to a person who is capable of filing a suit.
• capacity refers to the status of legal persons and their ability to sue or be sued in
tort and that a claimant’s injury might be caused by more than one person
• All persons or parties have the capacity to sue and be sued in tort law. Anyone
who is of sound mind and is not disqualified by law can sue.
In Law, every person has a inbuilt right to sue and be sued by another also called general
capacity to sue.
• Following has the capacity to sue or be sued-
1. Minor
2. Corporations
3. Act of person or persons having judicial authority
4. Independent and Joint tortfeasors.
5. Infants and Unborn Child.
6. Husband and Wife.

Minors:

A minor is liable in the same manner as a major in case he/ she commits a tort.

• Minor can sue an adult but only through an adult acting on behalf of minor

• He can also sue through his parents, legal guardian or other person authorized
by law

• Minor can be sued too. If violation of contractual obligation occur, then a tort
action cannot be initiated.

• If parents on own negligence places a child in a position to commit tort,

parents are held liable.

Corporations: A Corporation has a distinct juristic personality. It can be sued if any of

the servants commits an act on behalf of the corporation. Also a corporation can sue in its
own name for the tort committed against it.
Act of person or persons having judicial authority: The person or persons who are
acting under governmental or sovereign capacity cannot be sued.

Independent and Joint Tortfeasor: Two people committing a tort together is called
joint tortfeasor and two people acting independently and causing same damage is
independent tortfeasor. Both Independent and Joint tortfeasor can sue and be sued.

Infants and Unborn Child .

An Infant can sue for the injuries caused to him / her so long as he or she is
in womb. The Court in the famous Bhopal Gas tragedy held, those minors who had
conceived and not yet born and suffered injuries due to toxic gas are allowed damages.

Husband and Wife: Husband and wife cannot sue each other for the tort as long as they are
in capacity of husband and wife. However
,they can sue each other in any other relationship. For example if both are working under a
common boss/ employee etc.

GENERAL REMEDIES:
Any matters in which legal rights are involved remedies are given to the subjects in
a society to ensure justice and peace in that particular state. Remedies are the compensation
given to a person for the loss he has suffered from, it may be awarded to any person in
several ways like it may be ordered by the court, granted by judgement after trial or hearing,
by agreement (settlement) between the person claiming harm and the person who has
caused it, and by the automatic operation of law.

Kinds of remedies: Remedies of torts are usually of two kinds, namely...

1) Judicial Remedies

2) Extra judicial Remedies.

Judicial remedies are those remedies which are awarded to a party by court while extra
judicial remedies are those which are available to a party by his own act alone, in certain
cases of torts.

Judicial remedies are further divided into three main types i.e. damages, injunction, and
specific restitution of property, While extra judicial remedies are classified into several other
types like Expulsion of trespasser, Re-entry on land, Recaption of goods, Distress damage
feasant, Abatement of nuisance.

***JUDICIAL REMEDIES:

1. Awarding of damages

2. Granting of injunction

3. Specific restitution of property

 First two judicial remedies i.e. damages and injunction are two different
forms of remedies against the same wrong, while third one is specific restitution of property.

Damages: The fundamental principle of applying damages is that the plaintiff should be
fully compensated for the loss he has suffered from. He is supposed to be restored in the
position, he would have been in, before the tort is committed, this may be done by the
payment of money. The word “damages” should not be confused with the plural of the word
“damage” which means ‘harm’ or ‘injury’.

Types of damages:

a) Nominal and Contemptuous : nominal damages are those kind of damages in which
plaintiff proves that defendant has committed tort but due to this tort plaintiff has not
suffered any loss.

While contemptuous damages are the award of derisory sum, usually the smallest
coin of the realm of. These kinds of damages are awarded when court considers that the
plaintiff’s action is without merit and he should not have performed that particular act. The
plaintiff may then be at risk on costs, which are normally given to the successful party.

b) General and special: General damage is the type of damage which is supposed to flow
from the tort which is actionable per se and so it does not needs to be proved e.g. loss of
reputation in a libel action. While special damages is the term used for the damages in
which plaintiff should plead and needs to prove as part of his cause of action in torts where
damage is said to be the gift of the action e.g. negligence, slander, nuisance
Aggravated and exemplary: To award damages court may notice the manner where
specific tort is committed and then it may take its decision. If purpose of committing tort is to
harm proper feelings of dignity and pride of plaintiff, then in such case aggravated damages
may be awarded. These damages are given for purpose of compensating the other party, but
they are higher than would normally be the case to reflect the greater injury to the claimant.

While exemplary damages are punitive in nature

The difference between aggravated damages and exemplary damages is that aggravated
damages are awarded for the conduct that shocks the plaintiff and that’s why this type of
damages constitute real loss, whereas exemplary damages are awarded for the conduct that
shocks the court. In Rookes v. Barnard [1964] AC 1129, the House of Lords held that, except
where specifically authorised by statute, exemplary damages should be awarded only in two
categories of case:

• Oppressive, arbitrary or unconstitutional actions by servants of government.

 where the defendant’s conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable

• Types of injunctions: There are three types of injunctions:

a) Temporary injunction: In temporary injunction court orders prohibition of an

act by a party to lawsuit unless there has been a trial or other court action. Its
purpose is to maintain status quo and to prevent irreparable damage and third
function of such kind of injunction is to subject matter of that particular litigation
which is in process until the trial is over.

b) Perpetual injunction: Some injunctions may also require some specific period
of time in which that specific injunction is in force. A perpetual injunction is given
after a series of complete court sessions on its full merit. As merits within the case
are being discussed in the court and are made clear to establish relationships between
the two parties.

c) Mandatory injunctions:
They are of two kinds:

i) Mandatory restorative injunction: In this type of injunction defendant is

supposed to repair consequences of any wrongful act he has committed. In order
to regulate such kind of injunction plaintiff needs to prove where wrongful act has
not occurred but he was merely threatened.

ii) Mandatory enforcing injunction: This type of injunction allows the defendant to
perform some positive act which he has promised to perform, in such kind of
 injunction court needs to be satisfied that the agreement between the defendant and
plaintiff is specifically enforceable and it is just and equitable to grant the particular
injunction.

• Restitutionary remedies: These remedies are the third type of judicial remedies
and are made to restore the plaintiff to a position of “wholeness”, as close as
possible to their state before the tort is committed. Thus a person who is wrongfully
dispossessed of immoveable property, or of specific moveable property, is entitled
to recover the immoveable and moveable property, as the case may be.

EXTRA-JUDICIAL REMEDIES

Extra Judicial Remedies:-

Law does not expect a person to approach the Court for redress where he himself can remedy
the wrong by resort to self-help. Therefore, there may be circumstances when a person can
get the wrong caused to him redressed by using self-help instead of suing the defendant in a
court of law. Such remedies which a person is allowed to seek without approaching the Court
for justice are known as extra-judicial remedies.

Extra Judicial Remedies in India-

As indicated, judicial remedies are those legal measures which are adopted by parties
themselves for the redress of their grievances without going to the courts of law. They are
mainly the following:-
1) Rights of re-entry on land
2) Rights of re-caption of chattels
3) Abatement of nuisance
4) Distress Damage Feasant
1)Rights of re-entry on Land: A person who has been wrongfully ejected from his land
can re-enter his land provided he does it peaceably and without using force.

2)Rights of Re-caption of Chattels: If a person takes from my pocket my fountain pen and
runs with it, can run after him, seize and forcibly take back my fountain pen from him. This is
my right of re- caption for which neither civil nor criminal action would lie against me. But I
must use only a reasonable degree of force that is necessary for taking my chattel. If the
wrongdoer has placed the article in his own house, I can follow my property into that house
and take the article by entering the house. But if my article is found in another's premises
where it has been placed accidentally by some other person, I will not have the right to enter
the house without the consent of the owner of the house.

3)Abatement of Nuisance
As a general rule, everyone who is damaged by a private nuisance is entitled to abate it or
remove it. A man may enter upon his neighbour's land and abate a nuisance of filth which his
 neighbour has placed there. One may justify breaking down a gate which obstructs a private
right of way and cutting off those portions of one's neighbour's trees which project over one's
boundary .But it is the duty of the person who cuts the overhanging branches of the tree to
handover the wood to the owner of the tree.
The abatement of nuisance is a remedy which is not favored by law and is usually not
advisable to resort to. It may lead to breach of peace or be the means of doing irreparable
damage .In any case the party abating a nuisance must be careful not to interfere with the
property of the wrongdoer in excess of what is necessary to abate the nuisance, and if there are
alternative methods of abatement, one of which will be less injurious to the wrongdoer than
the other, the least injurious method must be adopted.

4) Distress Damage Feasant

If a man finds the cattle or chattel of another unlawfully on his land causing damage, he may
seize and detain it impounded in order to compel the owner of the offending cattle or chattel to
make compensation for the damage done. This right is known as that of Distress Damage
Feasant. Distress is usually taken of straying cattle, but it may be equally well taken of any
other chattel which unlawfully encumbers and damages a man's land. Thus, a railway
company has been held entitled to seize and detain a locomotive engine which was wrongfully
encumbering its lines.

The right to detain, being an extra-judicial remedy was always severely limited by the law.
Hence it must take place on the detainer’s land. If the thing escapes, he has no right to
follow and recapture it.

When there is no trespass, there is no right of distress. Thus if the cattle on being driven
along a road, stray on to the adjoining unfenced land without default on the part of their
drivers, they cannot be detained until there has been a reasonable opportunity of driving them
back again.

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