Remedies and remoteness of damage

1. Remedies in outline

Remedies in tort are judicial (granted by a court: damages, injunction, specific restitution of property) or extra-judicial (taken by the injured party himself without going to court). Damages are the principal remedy, because a tort is by definition a wrong redressable by unliquidated damages.

2. Kinds of damages

• Nominal damages. A small sum awarded where a legal right is violated but no actual loss is suffered: they recognise the right, in cases of injuria sine damno. In Constantine v. Imperial Hotels Ltd. (1944) the West Indian cricketer Learie Constantine was wrongly refused a room at a hotel and given one elsewhere; he was awarded five guineas.
• Contemptuous damages. A trivial sum (the smallest coin) where the court thinks the plaintiff, though legally in the right, should not have brought the action, often in defamation. In Dering v. Uris (1964) the plaintiff won his libel action but was awarded a halfpenny and had to bear costs.
• Compensatory (ordinary) damages. The usual measure: the sum that puts the plaintiff, so far as money can, in the position he would have been in if the tort had not been committed (restitutio in integrum). They include pecuniary loss (medical expenses, lost earnings, damage to property) and non-pecuniary loss (pain and suffering, loss of amenities, loss of expectation of life).
• Aggravated damages. Compensatory damages increased because of the manner of the wrong: insult, humiliation or malice that injures the plaintiff’s feelings and dignity.
• Exemplary (punitive) damages. Awarded to punish the defendant and deter others, over and above compensation. In Rookes v. Barnard (1964) Lord Devlin limited them to three categories: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated to make a profit exceeding the compensation payable; and cases where a statute authorises them. Indian courts have not confined themselves to these categories. The Supreme Court has awarded compensation with a punitive element for abuse of State power, as in Rudul Sah v. State of Bihar, 1983 INSC 85, (1983) 4 SCC 141, and Bhim Singh v. State of Jammu and Kashmir (1985), and in M.C. Mehta (1986) linked compensation to the capacity of the enterprise so that it deters.

3. Injunction

An injunction is an order of the court restraining the defendant from doing a wrongful act (prohibitory) or directing him to undo it (mandatory). It is the proper remedy for continuing torts such as nuisance and repeated trespass, where damages would not be adequate.

• Temporary (interim) injunctions are granted under Order XXXIX of the Code of Civil Procedure, 1908 to preserve the position until the suit is decided, on proof of a prima facie case, balance of convenience and irreparable injury.
• Perpetual injunctions are granted by the final decree under sections 37 to 42 of the Specific Relief Act, 1963; section 39 provides for mandatory injunctions.
• Injunction is discretionary. It may be refused where damages are adequate compensation or the plaintiff has acquiesced. (The details are in the Contract I note on injunctions.)

Specific restitution of property is the third judicial remedy: recovery of possession of land (section 5 or 6 of the Specific Relief Act) or of specific movable property (sections 7 and 8).

4. Extra-judicial remedies

• Self-defence of person or property, using reasonable force (see the note on general defences).
• Expulsion of a trespasser after asking him to leave, with no more force than necessary.
• Re-entry on land by the person entitled to possession, peaceably. Under section 6 of the Specific Relief Act a person dispossessed otherwise than in due course of law may recover possession by suit within six months, so forcible self-help is risky.
• Re-caption of goods: retaking one’s goods from a person who wrongfully took them, using reasonable force.
• Abatement of nuisance: removing the nuisance oneself, such as cutting overhanging branches or roots, without causing unnecessary damage.
• Distress damage feasant: detaining cattle or chattels that trespass and cause damage, until compensation is paid (see also the Cattle Trespass Act, 1871).

5. Remoteness of damage

An act may have a long chain of consequences. The defendant is liable only for those that are not too remote. Two tests have been used.

(a) Directness: Re Polemis (1921). Charterers’ servants were unloading a ship when one of them negligently let a plank fall into the hold. The hold contained petrol vapour; the plank struck a spark and the ship was destroyed by fire. The arbitrators found that a spark could not reasonably have been anticipated, though some damage from the falling plank could. The Court of Appeal held the charterers liable for the whole loss: once the act is negligent, the defendant is liable for all the direct consequences, foreseeable or not. The test was criticised as too wide: a slight act of carelessness could make a defendant liable for enormous unforeseeable losses.

(b) Reasonable foresight: The Wagon Mound (No. 1) (1961). The defendants’ servants negligently spilled furnace oil from a ship into Sydney Harbour. It spread to the plaintiffs’ wharf, where welding was going on. Expert evidence was that furnace oil on water could not reasonably be expected to catch fire. Days later molten metal from the welding fell on cotton waste floating in the oil, the oil ignited, and the wharf was burnt. The Privy Council refused to follow Re Polemis and held the defendants not liable for the fire: a person is liable only for consequences of a kind that a reasonable man would have foreseen. Damage by fouling of the wharf was foreseeable; damage by fire was not.

Refinements of the foresight test.

• Kind, not manner or extent. In Hughes v. Lord Advocate (1963) workmen left a manhole open with paraffin lamps around it. Boys knocked a lamp in and an unforeseeable explosion burnt one of them. Burns were the foreseeable kind of harm, so the defendants were liable though the exact manner was not foreseen.
• Egg-shell skull rule. The defendant takes his victim as he finds him. In Smith v. Leech Brain & Co. (1962) a burn on the lip from molten metal set off a pre-malignant cancer, and the man died; the employers were liable for the death.

In India both tests appear in the cases and textbooks, but the reasonable foresight test is the one generally followed. In contract the corresponding rule is Hadley v. Baxendale and section 73 of the Indian Contract Act (see the Contract I note on damages and remoteness).

6. Scott v. Shepherd and intervening acts

In Scott v. Shepherd (1773) the defendant threw a lighted squib into a crowded market. It fell near Willis, who to protect himself threw it on; it fell near Ryal, who did the same; it then burst in the plaintiff’s face and blinded him in one eye. The defendant was liable. The acts of Willis and Ryal were instinctive acts of self-protection, done in an emergency the defendant had created, and did not break the chain of causation.

The general principle is novus actus interveniens: a new, free and deliberate act of a third party, or of the plaintiff, which was not reasonably foreseeable, breaks the chain, and the defendant is not liable for what follows. The chain is not broken where the intervening act:

• is instinctive or done in an emergency (Scott v. Shepherd);
• is a rescue (Haynes v. Harwood, 1935, where the defendant’s unattended horses bolted after boys threw a stone, and a policeman was hurt stopping them); or
• is the very kind of act the defendant ought to have foreseen and guarded against, such as children meddling with an unattended cart (Lynch v. Nurdin, 1841).

How this is examined

As an essay: “Explain the tests of remoteness of damage with the help of decided cases” (asked in recent KSLU papers). Set out Re Polemis and The Wagon Mound with full facts, the criticism of each test, then Hughes, the egg-shell skull rule and intervening acts with Scott v. Shepherd. As short notes: kinds of damages, exemplary damages, extra-judicial remedies, or Scott v. Shepherd.