There are two kinds of remedies for torts, viz., judicial and extra-judicial. Judicial remedies are remedies which are afforded by the act of law; while extra-judicial are those which are available to a party in certain cases of torts, by his own acts alone.
These remedies are of two kinds: - the awarding of damages, and the granting of injunction. Damages and injunction are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second. The onus resting upon a plaintiff who asks for an injunction, and does not say that he has as yet suffered any special damage, is if anything the heavier, because it is incumbent upon him to satisfy the Court that such damages will necessarily be occasioned to him in the future.1)
Damages are the pecuniary satisfaction which a plaintiff may obtain by success in an action. They are limited to the loss which a plaintiff has actually sustained. He is compensated for
By 'natural consequence' is meant such a result as must follow from the defendant's act in the ordinary course of nature, in short, a consequence which is physically necessary; by 'probable consequence,' such a consequence as, human nature being what it is, usually follows from such an act as the defendant's, or so frequently follows that a person of ordinary intelligence and foresight would reasonably anticipate such a result.
Thus the defendant is only liable for such damages as he in fact contemplated or ought to have contemplated when he committed the tort. All other damage will be excluded as being too remote.
Where the defendant took up a pick-axe and chased the plaintiff's servant boy, who rushed for shelter into his master's shop and in so doing knocked out the faucet from a cask of wine whereby the wine, ran out and was lost, the defendant was clearly a wrong-door in pursuing the boy.2)
Some beasts were being driven along an occupation road to the fields: they were crossing the level siding of the railway : some trucks were sent down the line negligently which frightened the cattle : the drovers recovered some of them, but the others went along the road, got into a garden through a defect in the fences, and so on to the line, where they were run over by a train and killed. Blackburn, J., in holding the company liable, said that so long as the want of control over the cattle remained without any fault of the owner, the causa proxima was that which caused the escape, for the consequences of which he who caused it was responsible.3)
A light ship belonging to a harbour board and used for lighting approaches, was damaged in a collision caused by the negligence of the defendants. The place of the damaged ship was during her repair taken by another lightship belonging to the board and maintained at an annual expense for the purpose of such an emergency. Held, that the board was entitled to recover from the defendants not only the out-of-pocket expenses caused by the collision, but also substantial damages for the loss of the services of the damaged ship during the time her place was taken by the substituted lightship.4)
Indian case: A dispute having arisen regarding the possession of certain land, an order was passed, under s. 531 of the Criminal Procedure Code, 1872, forbidding both plaintiff and defendant to interfere with the land until either established his title in a civil Court. The land in consequence of this order was not cultivated in the following year. The plaintiff sued for damages for the loss of profits resulting from non-cultivation of the land. Held, that the, damages were not the probable result of the defendant's act being the consequence of the order of the Magistrate.5)
Law will permit no damages to be recovered excepting such as are the natural consequences, and also the legal consequences of the tort.
The negligence of a railway company caused such an injury to a passenger that he became insane, and by reason of insanity he committed suicide; the injury was not regarded as the proximate cause of the death, and the company was held not liable for his death.8) The plaintiff who was wrongly charged with not having a ticket and was removed with no more force than was necessary for the purpose from the train, left a pair of race glasses in the carriage, which were lost. The company was held not liable for its less.9)
Indian cases: Where plaintiffs sued for possession of certain idols and prayed for damages on the ground that they had been prevented from receiving certain sums, which they might have received if they had the custody of the idols, it was held that no suit would lie as the damages were too remote.10) But the loss of rents to a landlord, resulting from his ryot's crops being injured and destroyed owing to a neighbouring landlord's stopping the outlets by which surface drainage water had from time immemorial flowed from the plaintiff's land, in consequence of which stoppage the plaintiff's land was flooded and the crops destroyed, it was held that this was not too remote a damage.11) In an action against the owner for breach of the charter party in not supplying a ship tight, staunch, and strong as stipulated, the plaintiffs sought to recover as damages arising out of such breach of the charter party, the interest paid by them on the drafts in pursuance of their arrangement with the Comptoir d' Escompte, the sum they had to pay on renewing the bills, a further sum for interests on bills they could not negotiate in consequence of not being able to obtain bills of lading from the defendant, and the value of the stamps on the bills which had been cancelled in pursuance of the plaintiffs' arrangement with the Comptoir d' Escompte. Held, that such damages were too remote.12)
The expression 'measure of damages' means the scale or rule by reference to which the amount of damages to be recovered is, in any given case, to be assessed. Damages may arise to almost any amount, or they may dwindle down to being merely nominal. The amount of damages depends upon the nature of the action and the evidence. There are four kinds of damages:
General damages are such as the law will presume to be the natural or probable consequences of the defendant's acts. They need not be by proved evidence; for they arise by inference of law, even though no actual pecuniary loss has been, or can be, shown. Whenever the defendant violates any absolute legal right of the plaintiff, general damage to at least a nominal amount will be implied.15) In such cases the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff's right.
Special damages, on the other hand, are such as the law will not infer from the nature of the act complained of; they must therefore be specially claimed on the pleadings, and strictly proved at the trial. Such damages depend upon the special circumstances of the case, upon the defendant's position, upon the conduct of the third persons, etc. In some actions of tort, where no actual and positive right of the plaintiff has been infringed, special damage is essential to the cause of action; and if it be not proved, the plaintiff will be non-suited. The law is very strict as to special damage, where it is necessary to sup port the action. In such a case the plaintiff must prove the loss of money, or of some other material temporal advantage, e.g., loss of a marriage, of employment, of income, of custom, of profits, and even of gratuitous entertainment and hospitality; but not pain of mind, and annoyance or vexation. Where, however, special damage is not essential to the cause of action, the plaintiff is entitled to recover general damages without proof of actual pecuniary loss. Still, in this case, if any special damage has in fact been suffered, the plaintiff can claim to be compensated for this in addition to his general damages, provided he has set out such claim in his pleading, so that the defendant may not be surprised at the trial. Should the plaintiff in such a case fail to prove his special damage at the trial, he may still resort to and recover general damages. A plaintiff who succeeds in recovering general damages may yet be ordered to pay the costs occasioned by a claim for special damage which he has failed to substantiate.16)
Where special damage is the gist of a plaintiff's case, and he fails to prove such damage, he is precluded from recovering ordinary damages.17)
Damages when given are taken to embrace all the injurious consequences of the wrongful act, unknown as well as known, which may arise hereafter, as well as those which have arisen, so that the right of action is satisfied by one recovery. When the cause of action is complete, when the whole thing has but one neck, and that neck has been cut off by the act of the defendant, it would be most mischievous to say; it would be increasing litigation to say; you shall not have all you are entitled to in your first action, but you shall be driven to bring a second, a third, or a fourth action for the recovery of your damages18)
It is necessary to distinguish between a complete cause of action which may yet produce fresh damage in the future, and a continuous cause of action from which continuous damage steadily flows. The plaintiff may be injured in a railway accident, and recover substantial damages from the company, and subsequently disease of the brain or of the spine may develop, which is solely due to the accident. He cannot bring a second action, or claim further damages in the first action. But where the cause of action is a continuing one (as an action for a continuing trespass) a fresh cause of action arises every day that such breach or injury continues.19) Should the injury complained of be repeated after the assessment of damages it is open to the plaintiff to bring a fresh action. Where the cause of action is not a continuing one the damages should be assessed once for all. No fresh action can be brought for any subsequent damage that may hereafter arise from that act. Not only the damage that has accrued, but also such damage, if any, as it is reasonably certain will occur in the future, should be taken into consideration. The plaintiff should be compensated for every prospective loss which would naturally result from the defendant's conduct, but not for merely problematical damages that may possibly happen, but probably will not.20)
In an inquiry as to damages in respect of a continuing cause of action, the damages are to be assessed down to the date when the assessment takes place.21)
Where special damage is essential to the cause of action, such special damage as is alleged and proved will only be awarded. Hence, it would seem to follow that if any fresh damage followed in the future, that would constitute a fresh ground of action, because it was not included in the first. Thus, a second action will lie for fresh special damage in all cases in which no action lies at all without proof of special damage.22)
Two actions can also be brought where the same facts give rise to two distinct causes of action.23)
Where the plaintiff, whilst driving in his cab, was injured by defendant's negligence, and having recovered damages in an action for the injury to the cab, he brought a second action for personal injuries, it was held that he was entitled to do so, these being two distinct causes of action.24)
Where the plaintiff had received a blow on the head, and sustained little apparent injury, and recovered small damages, and afterwards, in consequence of the blow, a portion of his skull came away, and it then appeared that the skull had been fractured, and he then brought a second action, which was attempted to be supported on the ground that the former action was for a mere battery and this for mayhem, it was held that no action lay, for there was but one blow, and that was the cause of action in both suits, and not the consequences.25) While attempting to enter a car of the defendants, the plaintiff's wife was injured through the negligence of the guard in closing the gate upon her. She had been pregnant for a few weeks and as a result of the injury, miscarried. Held, that plaintiff could not recover damages for the loss of prospective offspring.26)
Indian cases: Where the plaintiff was a cultivator and his land was flooded owing to the cutting of a bank of a reservoir on his land, he was held entitled, as damages, to the profits which he would have realized, if he had cultivated the land.27) Where the defendant kept the plaintiff out of possession of certain land, and also cut down all the fruit bearing and timber trees, and carried away or destroyed by brickmaking all the fertile soil, it was held, that the plaintiff was entitled to damages for prospective loss in addition to that which had actually occurred.28)
By mental shock is meant a shock to the moral or intellectual sense : by nervous shock a shock to the nerve and brain structures of the body.
No action will lie for mental suffering unattended by physical injury. Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested..29) For example, in a case of defamation the Court in assessing damages could not avoid taking into consideration the injured feelings of the plaintiff, though if the plaintiff failed to prove publication to a third party, no matter how deeply his feelings might be wounded at the words used to him by the defendant, he would have no remedy by way of damages. However keen and painful an emotion of the mind may be, it can only be measured and proved by physical effects. The case of assault forms an exception to this, for the essence of the wrong consists in putting a man in present fear of violence.
As regards damage arising from nervous shock, the Privy Council has ruled that such damage is not the natural result of negligence, and is, therefore, too remote to fix defendant with liability.30) But this case is severely criticised as laying down bad law. In their Lordships' judgment the difference between a 'nervous shock' and a 'mental shock' is over-looked. This decision has been pronounced to be open to question31) and the Irish Court of Appeal has even dissented from it.32) In a case Wright, J., refused to follow the Coultas' case33), and it is laid down that damages which result from a nervous shock occasioned by fright unaccompanied by any actual impact may be recoverable in an action for negligence if physical injury has been caused to the plaintiff.34) The true question in determining liability in cases of this kind would seem to be that formulated by Pollock, viz., “ whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiffs case, to the physical effects complained of.”
A husband and wife were driving in a buggy across a, railway crossing, when owing to the negligence of the gate-keeper, the buggy was nearly but not quite run down by a passing train. The wife fainted and received a severe nervous shook from the fright, and in consequence afterwards suffered a severe illness. It was held, however, that the damage was too remote to be recovered.35) The plaintiff was an invalid, and being at the time ill in bed, she was startled by a noise, which proved to be the crash of a broken window pane, some of the glass of which fell on her bed. The cause of the crash was the pole of a van driven by one of the defendant's servants, the horses of which had run away. The consequences to the plaintiff, according to the evidence, were serious. She sustained a severe mental shock, which made her frequently hysterical, and incapacitated her from attending to her daily duties in the house. But the jury after a long deliberation could not agree in their verdict and were discharged.36) In Smith v. Johnson & Co., decided in January 1897, it was held that where a man was killed in the sight of the plaintiff by the defendant's negligence, and the plaintiff became ill, not from the shock of fear of harm to himself, but from the shock of seeing another person killed, this harm was too remote a consequence of the negligence.
The defendant knowingly and falsely represented to the plaintiff that her husband had met with a serious accident and was lying in great danger. By reason of this misrepresentation the plaintiff suffered great mental anguish, and was made seriously ill, and her hair was turned white, and her life was for some time in great danger; and her husband had to incur expenses for medical treatment for her. These consequences were not in any way the result of previous ill-health or weakness of constitution; nor was there any evidence of pre disposition to nervous shock or of any other idiosyncrasy. It was held that an action for damages would lie.37) The plaintiff, who was in a family way, was behind the bar of her husband's public house, and defendants by their servants negligently drove a pair-horse van into the public house. The plaintiff in consequence sustained a severe shock and became seriously ill and gave premature birth to a child, who in consequence of the shock sustained by the plaintiff was born an idiot. Held, that the defendant was liable, and the damages sought to be recovered were not too remote.38)
Indian case: Damages are not usually awardable under the express head of mental anxiety, but Courts are at liberty to give damages which may effectually protect the injured party from the repetition of the wrong.(Furookh v. Fuzul)) In estimating damages for malicious prosecution, a Court is not necessarily wrong in taking into consideration the plaintiff's feelings.39)
The recovery by plaintiff of full compensation for the loss or damage his property has sustained, under a contract with insurers, cannot be given in evidence in reduction of damages in an action against the wrong-doer who has done the mischief. The plaintiff's contract with the under-writers or insurers is res inter alios acta, of which the defendant cannot avail himself. If it were not so, the wrong-doer would take the benefit of a policy of insurance without paying the premium.40) A plaintiff, however, who has received a full indemnity for his loss under a contract of insurance, and has afterwards recovered compensation in an action for damages against the wrong-doer, is not entitled to a double satisfaction; but, as soon as he has received from the under-writer or insurer the amount which he has insured, he becomes a trustee for the latter in respect of any compensation paid or payable by the wrong-doer, and is bound to hand over to the insurer whatever money he receives from the wrong-doer over and above the actual loss he has sustained, after taking into account the amount he has received under the contract of insurance. The insurer, moreover, who has paid the loss, is entitled to sue in the name of the insured for the purpose of recovering from the wrong-doer full compensation for the injury.41) But the right of the insurer is merely to make such claim for damages as the insured could have made; and when the latter cannot assert a claim for damages against the wrong doer, neither can the insurer do so.42)
In an action for an injury done to the plaintiff's vessel from negligence in running it down at sea, the fact of the plaintiff having received from the under-writers the amount of the loss was held to be no answer to the plaintiff's claim for damages.43) In an action for injuries caused by the defendant's negligence, a sum received by the plaintiff on an accidental policy cannot be taken into account in reduction of damages.44).
As damages may be aggravated by the defendant's ill-behaviour or motives, so they may be reduced by proof of provocation, or of his having acted in good faith; and many kinds of circumstances which will not amount to justification or excuse are for this purpose admissible and material. In all cases where motive may be a ground of aggravation, evidence on this score will also be admissible in reduction of damages.
The measure of damages, or test by which the amount of damages is to be ascertained, is, in general, the same both in contract and in tort, with these distinctions:
The rule with regard to the remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort.
An injunction is an order of a Court restraining the commission, repetition, or continuance of a wrongful act of the defendant. The object of the interference by injunction is to prevent the infringement or disturbance of a right, or for the purpose of better enforcing rights, or preventing mischief until such rights have been ascertained.
An injunction may be granted to prevent waste; or trespass; or the continuance of nuisances to dwelling houses, and houses of business, to right of support, to water, to rights of way, to highways, to ferries, to market, etc., or the infringement of patent rights, copyright and trademarks; or the publication of trade secrets; or the wrongful sale or detention of a chattel; or the publication of a libel or the oral uttering of a slander; or the disclosure of confidential communications, papers, secrets, etc.; or the publication of manuscripts, letters, and other unpublished matter.
Before granting an injunction the Court must be satisfied:
An interim injunction is only granted when delay would prevent or render extremely difficult the subsequent administration of justice.
The remedies falling in this class will be found treated in their proper places. Of these the remedy of abatement is now in use only as to rights of common, rights of way, and sometimes rights of water, and even in those cases it ought never to be used without good advisement.
Persons are said to be joint tort-feasors when:
The liability of the wrong-doer in tort is joint and several. To constitute a joint liability the act complained of must be joint, not separate; for, if separate, separate actions, and not a joint one, must be brought. Claims for damages against two or more defendants for wrongful acts committed by them independently of each other cannot be joined in one suit although the wrongful acts complained of are all identical in their nature.46) Where the plaintiff has sued several defendants jointly, and it appears that separate actions should have been maintained against each defendant, the plaintiff may be put to his choice as to which one defend ant he will proceed against in the suit before the Court.47)
In connection with the liability for a joint act the following principles should be observed:
If several co-proprietors of a stage-coach intrust the driving of the coach to one of them, all will be responsible for injuries caused by his negligent driving; and, if two omnibuses are racing, and one of them runs over a man who is crossing the road and has not time to get out of the way, the injured person has a remedy against the proprietor of either omnibus. Where two persons have a joint purpose and thereby make themselves joint-trespassers, and the one beats violently, and the other a little, the real injury is the aggregate of the injury received from both, and each is responsible for all the damage
Indian cases: In a suit for compensation for damage done to property, each and every one of the persons was equally responsible to make compensation for the loss sustained, when he happened to be a part of the common assembly and executed a common purpose, and not in proportion to his share of the plunder received or of the damage done by him. Coercion to form a member of the assembly or bear a part in the damage is no excuse from responsibility in a civil suit for compensation.48) In a suit to recover possession of land from the enjoyment of which as a tenant-in-common the plaintiff had been excluded by the joint action of all the defendants, who had divided the property between themselves, it was held that the defendants were all equally responsible for the damage sustained by the plaintiff, and that none of them could restrict their liability for mesne profits to that portion only of which they are in possession.49)
No action for contribution is maintainable by one wrong-doer against another, although the one who seeks contribution may have been compelled to satisfy the whole damages50); provided that the wrong is so obviously unlawful that no reasonable man in committing it could suppose that he was doing a lawful act51) No contribution is allowed between joint tort-feasors because the community of wrong between them is the foundation of the action, but the same community of wrong precludes the defendant from recovering what he has paid in consequence of the illegal act.52)
This rule does not extend:
The plaintiff and defendant destroyed the machinery and injured the mill of a Yorkshireman named Starkey. The mill-owner was not prepared to submit tamely, and brought an action against the pair of them. The jury gave him £840 as damages, and instead of getting £420 from each, he made the plaintiff pay £840. The plaintiff sued the defendant for contribution, that is to say £420. It was held that the defendant was not liable to contribute ; for, ex turpi causa non oritur actio.54)
Indian cases: S granted to G and A a, putni of a certain share in a Zemindari, and thereupon P brought a suit against G, S and A, for specific performance of an agreement to grant to him (P) a putni of the same share. That suit was decreed with costs, the whole of which were realized from G. In a suit for contribution brought by G against S and A, the lower appellate Court found that G, S and A had conspired in setting up a false defence in the former suit in order to defeat P's claim. Held, in second appeal, that assuming such collusion were proved, the suit for contribution was not maintainable, G, S and A being joint wrong-doers.55)0
Where the plaintiffs were in possession of lands standing in the names of their father and deceased brother, part of which was sold by the deceased brother's widow to the defendants who got a decree for possession against the plaintiffs who kept the former out of possession. Held, that the plaintiff's possession should not be considered as that of tort-feasors and they were therefore entitled to recover from the defendants by way of contribution the rent paid by the plaintiffs for the portion of the land purchased by the defendants.56) The equitable rule of contribution, will not apply to defendants in a, suit for damages for libel. Where a joint decree was passed against two joint tort-feasors and one of them paid the whole amount of the decree, and afterwards sued the other for contribution. Held, that whatever rights and liabilities of joint tort-feasors inter se may be before such a decree is passed, there is a right of contribution afterwards, the matter having passed in rem judicatum; and the Court is not entitled to go behind such a decree and consider the merits of the case.
A deed of partition between A and B, members of an undivided Hindu family, provided that A, who took over all the debts due to the family, should bear the loss, if any, incurred in the appeal then pending in a suit brought by the family on a bond. The bond was held to evidence a fraudulent transaction, and the appeal was dismissed with costs. The decree for costs was executed against B and satisfied by him. He sued the son of A (deceased) to recover the amount paid by him. Held, that the plaintiff was entitled to recover, the claim not being barred by the rule against contribution between joint tort-feasors.57)