FInal DesTinaTiOn of PrOjecT

LAW OF TORTS PROJECT

REMIDIES TO THE TORTS

LAW OF TORTS

REMEDIES TO THE TORTS (DAMAGES ,

SPECIFIC RESTITUTION OF PROPERTY)

SUBMITTED BY: SUBMITTED TO:

AAKASH & ANSHUMAAN MR.AMIT BHASKAR

B.A.L.L.B. 1st SEM. STAFF FACUTLY (LAW OF TORTS)

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Certificate

This is to certify that this project “An overview on Remedies in Torts (Damages,

Restitution of Property)” made by Aakash Bamal & Anshumaan Arya, B.A.LL.B.

1st Sem. This project is totally made by us and not copied from anywhere. If any

plagiarism find by you, you can cancel us project.

Thank You !!

Aakash Bamal & Anshumaan Arya

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Acknowledgement

This is to thank every people who helped us while doing this project . We want to

thanks Mr. Amit Bhaskar , whose classes helped me a lot. College library also

helped us with the book and the sites. We also want to thanks our seniors and

friends who helped us a lot .

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Table of Contents

Introduction 4-5

Remedy 6

Types of Remedies 6-7

Remdy of Torts 7

Nature in Remedies 8

Damages 9

Contemptuous, Nominal, Ordinary and Exemplary Damages 9-10

General and Special Damages 11

Prospective and Continuing Damages 11-12

Damage for Mental Suffering and Psychiatric injury or Nervous Shock 12-13

Damages in an action for personal injuries 13

Non-Pecuniary Loss, Pecuniary Loss 13-15

Damages for unwanted pregnancy resulting from medical negligence 15

Injury to Property 15-16

Remoteness of Damages 16-18

Interim Damages 18-19

Conclusion 20

Restitution of Property 21-23

Bibliography 24

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Introduction

The word tort has been derived from the Latin term tortum which means to “twist”.

It includes that conduct which is not straight or lawful, but, on the other hand,

twisted, crook door unlawful. It is equivalent to the English term „wrong‟. The law

imposes a duty to respect the legal rights vested in the members of the society and

the person making a breach of that duty is said to have done the wrongful act. „Tort‟

is a breach of that duty recognised under the law of torts. Violation of a duty not to

interfere with the possession of land of another person result in the tort of trespass to

land and the violation of a duty not to defraud another results in the tort of deceit.

“Tortious Liability arises from the breach of a duty primarily fixed by the law : this

duty is towards persons generally and its breach is redress by an action for un

liquidated damages.” – Win field. Tort is a civil wrong, and secondly every civil

wrong is not a tort. Tort is a civil wrong which is redress by an action for un

liquidated damages and which is other than a mere breach of contract or breach of

trust.1. Tort is a civil wrong Tort belongs to the category of civil wrongs. The basic

nature of civil wrongs is different from a criminal wrong. In the case of a civil

wrong, the injured party, i.e., the plaintiff institutes civil proceedings against the

wrongdoers, i.e., the defendant. In such a case, the main remedy is damages. The

plaintiff is compensated by the defendant for the injury caused to him by the

defendant. In the case of a criminal wrong, on the other hand, the criminal

proceedings against the accused are brought by the State. Moreover, in the case of a

criminal wrong, the individual, who is the victim of the crime, i.e., the sufferer, is

not compensated. Justice is administered by punishing the wrongdoer in such a

case.2. Tort is other than a mere breach of contract or breach of trust Tort is that

civil wrong which is not exclusively any other kind of civil wrong. If we find that

the only wrong is a mere breach of contract or breach of trust, then obviously it

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would not be a tort. Thus, if a person agrees to purchase a radio set and there after

does not full fill his obligation, the wrong will be a mere breach of contract. It is

only by the process of elimination that we may be able to know whether the wrong

is a tort or not. First, we have to see whether the wrong is civil or criminal wrong; if

it is a civil wrong it has to be further seen if it is exclusively belongs to another

recognized category of civil wrongs, like breach of contract or breach of trust. If it is

found that it is neither a mere breach of contract nor any other civil wrongs, then we

can say that the wrong is a tort. Tort is redress by an action for un liquidated

damages . Damages is the most important remedy for a tort. After the wrong has

been committed, generally it is the money compensation which may satisfy the

injured party. After the commission of the wrong, it is generally not possible to

undo the harm which has already been caused. If, for example, the reputation of a

person has been injured, the original position cannot be restored back. The only

thing which can be done in such a case is to see what is the money equivalent to the

harm by way of defamation and the sum so arrived at is asked to be paid by the

defendant to the plaintiff. Damages in the case of a tort are un liquidated. Liquidated

damages means such compensation which has been previously determined or agreed

to by the parties. When the compensation has not been so determined but the

determination of the same is left to the discretion of the court, the damages are said

to be un liquidated. 1Law of Torts, Dr. R.K. Bangia ,Allahabad Law Agency ,

(Twenty-Third Edition- 2013) , pg. no. 3-13.

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Remedy

The manner in which a right is enforced or satisfied by a court when some harm or injury,

recognized by society as a wrongful act, is inflicted upon an individual.

The law of remedies is concerned with the character and extent of relief to which an individual

who has brought a legal action is entitled once the appropriate court procedure has been

followed, and the individual has established that he or she has a substantive right that has been in

fringed by the defendant.

Categorized according to their purpose, the four basic types of judicial remedies are ;

(1) Damages;

(2) Restitution;

(3) Coercive remedies;

(4) Declaratory remedies.

(1)

The remedy of damages is generally intended to compensate the injured party for any harm he or

she has suffered. This kind of damages is ordinarily known as Compensatory Damages. Money

is substituted for that which the plaintiff has lost or suffered. Nominal damages, generally a few

cents or one dollar, are awarded to protect a right of a plaintiff even though he or she has

suffered no actual harm. The theory underlying the award of Punitive Damages is different since

they are imposed upon the defendant in order to deter or punish him or her, rather than to

compensate the plaintiff.

(2)

The remedy of restitution is designed to restore the plaintiff to the position he or she occupied

before his or her rights were violated. It is ordinarily measured by the defendant's gains, as

opposed to the plaintiff's losses, in order to prevent the defendant from being unjustly enriched by

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the wrong. The remedy of restitution can result in either a pecuniary recovery or in the recovery of

property.

(3)

Coercive remedies are orders by the court to force the defendant to do, or to refrain from doing,

something to the plaintiff. An Injunction backed by the Contempt power is one kind of coercive

remedy. When issuing this type of remedy, the court commands the defendant to act, or to refrain

from acting, in a certain way. In the event that the defendant willfully disobeys, he or she might be

jailed, fined, or otherwise punished for contempt. A decree for Specific Performance commands

the defendant to perform his or her part of a contract after a breach thereof has been established.

It is issued only in cases where the subject matter of a contract is unique.

(4)

Declaratory remedies are sought when a plaintiff wishes to be made aware of what the law is,

what it means, or whether or not it is constitutional, so that he or she will be able to take

appropriate action. The main purpose of this kind of remedy is to determine an individual's rights

in a particular situation.

Remedies in Torts

Notes adapted from Michael A. Jones, Textbook on Torts, Seventh Edition, 2000.

• The two principal remedies available to the victim of a tort are damages to compensate for the

harm he has suffered and, where appropriate, an injunction to prevent future harm. Damages is the

predominant remedy. Certain forms of self-help, such as abatement of a nuisance or self - defence

can be regarded as remedies, but the courts do not encourage this.

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Nature of Remedies

Remedies are also categorized as equitable or legal in nature.

• Monetary damages awarded to a plaintiff because they adequately compensate him or her for th

e loss are considered a legal remedy. An equitable remedy is one in which a recovery of money

would be an inadequate form of relief.

• Courts design equitable remedies to do justice in specific situations where money does not

provide complete relief to individuals who have been injured. Injunctions, decrees of specific

performance, declaratory judgments, and constructive trusts are typical examples of some kinds

of equitable remedies. Restitution is regarded as either a legal or equitable remedy, depending

upon the nature of the property restored.

• The distinction between legal and equitable remedies originally came about because courts of

law only had the power to grant legal remedies, whereas courts of Equity granted equitable

remedies to do justice in situations where money would be inadequate relief. The courts of law

and the courts of equity have merged, but the distinction still has some importance because in a

number of courts, a trial by jury is either granted or refused, according to whether the remedy

sought is legal or equitable. When a legal remedy is sought, the plaintiff is entitled to a jury trial,

but this is not true when an equitable remedy is requested.

Sometimes a plaintiff might have both legal and equitable remedies available for the redress of

personal grievances. In such a case, a plaintiff might have to exercise an Election of Remedies.

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Damages

In a suit for damages in a tort case, the Court awards pecuniary compensation to the plaintiff or

the injury or damage caused to him by the wrongful act of the defendant. After it is proved that the

defendant committed a wrongful act, the plaintiff would be entitled to compensation, may be

nominal, though he does not prove any specific damage or injury resulting to him, in cases where

the tort is actionable per se. But even in these cases when specific damage is alleged and in all

other cases, where tort is not actionable per se, and it becomes the duty of the plaintiff to allege the

damage resulting from the wrongful act for which he claims damages, the Court’s enquiry resolves

in deciding three questions : (1) Was the damage alleged caused by the defendant’s wrongful act ?

(2) Was it remote ? (3) What is the monetary compensation for the damage ? If the damage

alleged was not caused by the defendant’s wrongful act the question of its remoteness will not

arise. In deciding the question whether the damage was caused by the wrongful act, the generally

accepted test is known as „but for‟ test. This means that if the damage would not have resulted but

for the defendant’s wrongful act, it would be taken to have been caused by the wrongful act. it

means that the defendant’s wrongful act is not a cause of the damage if the same would have

happened just the same, wrongful act or no wrongful act. Thus when a doctor is negligent in

failing to see and examine a patient and give him the proper treatment, the claim will still fail if it

is shown on evidence that the patient would have died of poisoning even if he had been treated

with all due care. The doctor’s negligence in such cases is not the cause of the patients death.

Types of Damages :

a. Contemptuous Damages, Nominal Damages, Ordinary Damages and

Exemplary Damages :

Contemptuous Damages are awarded when it is considered that an action should never have been

brought. When the plaintiff has technically a legal claim but there is no moral justification for it or

he morally deserved what the defendant did to him, the Court may award half penny or a paisa

showing its disapproval of the conduct of the plaintiff.

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Nominal Damages are awarded where the purpose of the action is merely to establish a right no

substantial harm or loss having been suffered, for example, in cases of infringement of absolute

rights of personal security (e.g. assault) and property (e.g. bare trespass, invasion of a right of

easement, etc.). Nominal damages are so called because they bear no relation even to the cost and

trouble of suing, and the sum awarded is so small that it may be said to have no existence in point

quantity,” e.g. one anna , one shilling. But small damages are not necessarily nominal damages.

An award of nominal damages implies no censure of the plaintiff’s conduct in bringing the suit.

Ordinary Damages are awarded where it is necessary to compensate the plaintiff fairly for the

injury he has in fact sustained. These are also called compensatory damages. Whatever sum is

awarded, whether large or small, must afford a fair measure of compensation to the plaintiff with

the reference to the actual harm sustained by him. The law does not aim at restitution but

compensation, and the true test is, what sum would afford, under the circumstances of the

particular case, a fair trial and reasonable compensation to the party wronged for the injury done to

him, the plaintiff’s own estimate being regarded as the maximum limit. The measure of reparation

or damages for any injury should be assessed as nearly as possible at a sum of money which

would put the injured party in the same position he would have been in if he would not have

sustained the injury. For example, where a surveyor negligently surveyed a property which the

plaintiff purchased the proper measure of damages is the amount of money which will put the

plaintiff into as good a position as if the surveying contract had been properly fulfilled.

Exemplary Damages are awarded not to compensate the plaintiff but to punish the defendant and

to deter him from similar conduct in future. The House of Lords has ruled that exemplary damages

can be allowed in three categories of cases. The first category is oppressive, arbitrary or

unconstitutional action of the Government or its servants. Cases in the second category are those

in which the defendant’s conduct has been calculated by him to make a profit for himself which

may well exceed the compensation payable to the plaintiff. Third category consists of cases in

which exemplary damages are expressly authorised by statute.

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b. General and Special Damages

General Damages are those which the law will imply in every violation of a legal right. They need

not be proved by evidence for they arise by interference of law., even though no actual pecuniary

loss has been, or can be, shown. General damages “are such as the jury may give when the Judge

cannot point out any measure by which they are to be assessed, except the opinion and judgement

of a reasonable man.” Whenever the defendant violates any absolute legal right of the plaintiff

general damages to at least a nominal amount will be implied.

The Expression Special Damages ‟Has Three Different Meanings” :-

(1). It is employed to denote that damage arising out of the special circumstances of the case

which, if properly pleaded, may be super-added to the general damage which the law implies in

every infringement of an absolute right.

(2). Where no actual and positive right (apart from the damage done) has been disturbed, it is the

damage done that is the wrong; and the expression “special damage,” when used of this damage,

denotes the actual and temporal loss which has, in fact, occurred. Such damage is called variously

“express loss,” “particular damage,” damage in fact,” “special or particular cause of loss.”

(3). In actions brought for a public nuisance, such as the obstruction of a river or a highway,

special damage” denotes that actual and particular loss which the plaintiff must allege and prove

that he has sustained beyond what is sustained by the general public, if his action is to be

supported, such particular loss being, as is obvious, the cause of action.

c. Perspective and Continuing Damages :

Damages resulting from the same cause of action must be recovered at one and the same time as

more than one action will not lie on the same cause of action. If a person is beaten or wounded and

if he sues he must sue for all his damage, past, present and future, certain and contigent . He

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cannot maintain an action for a broken arm, and subsequently for a broken rib though he did not

know of it when he commenced his first action.

Damages when given are taken to embrace all the injurious consequences of the wrongful act,

unknown as well as known, which may arise here after, as well as those which have arisen, so that

the right of action is satisfied by one recovery. “The cause of action is incomplete, for the whole

thing has but one neck, and that neck was cut off by one act of the defendant,.....It would be more

mischievous to say – it would be increasing litigation to say – you shall no that all you are entitled

to in your first action, but you shall be driven to bring a second, a third or fourth action” for the

recovery of your damages. Thus recovery of damages in an action of assault and battery is a bar to

an action for a subsequent loss in consequence of apart of the skull coming of subsequently owing

to the same injury. A fresh action action can not be brought unless there is both a new unlawful act

and fresh damage.

If the same wrongful act violates two distinct rights, successive actions may be brought in respect

of each of them. If a person sustains two injuries from a blow, one to his person, another to his

property, as for instance, damage to a watch there is no doubt that he can maintain two actions in

respect of the one blow. 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. There is no such thing as a continuing cause of action; but what

is called a continuing cause of action is a cause of action which arises from the repetition of acts or

omission of the same kind as that for which the action was brought.

d. Damages for Mental suffering and Psychiatric Injury or Nervous

Shock

The common law regarding recovery of compensation for pure psychiatric illness also described

by the expression nervous shock was recently reviewed by the House of Lords in White v Chief

Constable of South Yorkshire, where all relevant earlier authorities were considered. The court

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noticed that this law “is a patchwork quilt of distinctions which are difficult to justify. The Court,

however, declined to reform the leaving this task to Parliament.

For understanding the law as it now stands after White’s case mental suffering has to be divided

into different categories. Mental suffering which follows from foreseeable physical injury is

routinely compensated under the head „pain and suffering‟ while awarding compensation for

personal injury.

A third case which also arose out of the same football stadium disaster is Hicks v Chief Constable

of the South Yorkshire Police. In this case the plaintiff made a symbolic claim on behalf of his

daughters who died in the disaster for the distress suffered by them before they died. The claim

was negative holding that fear of impending death felt by the victim of a fatal injury before that

injury is inflicted did not furnish any cause of action.

e. Damages in an action for personal injuries

Personal injury may cause (a)non- pecuniary as well as (b) pecuniary loss to the plaintiff. Non

pecuniary loss may cover the following heads of damage -: (1) Pain and suffering; (2)loss of

amenities, and (3) loss of expectation of life. Pecuniary loss may cover the following heads : (1)

consequential Expenses; (2) Cost of care, and (3) loss of earnings. A recent casein which all the

above heads of damage except loss of expectation of life figured is Lim Po Cho v Camden and

Islington Area Health Authority. The earlier practice was to make a global award without

indicating the sums under different heads. But the current practice is to item is the award at least

broadly.

Non-Pecuniary Loss

Pain and suffering consequential to injury inflicted on the plaintiff is a proper head of damage for

which the defendant must compensate the plaintiff. it will include pain attributable to medical

treatment for the injury. The amount of compensation will vary with the intensity of pain and

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suffering of the plaintiff. So, if the plaintiff after receiving the injury becomes wholly unconscious

or is otherwise unable to experience the pain, he gets no compensation under this head, however

serious the injury may be. Loss of amenities is a separate head of damage and covers deprivation

of ordinary experiences and enjoyment of life. For example, if the plaintiff is deprived of his

ability to play games which he used to play before the injury, he would be entitled to damage

under this head. The important distinction between the heads of pain and suffering and loss of

amenities is this that the fact of unconscious deprives the plaintiff of any damage under the former

head but not so under the latter

Loss of expectation of life is a separate head of damage when a normal expectation of life is

shortened as a result of the injury.

Quantification of damages for non-pecuniary damage such as pain and suffering and loss of

amenities presents great difficulties. The court cannot restore a person to the state of health which

he enjoyed before he suffered a serious injury to his body or brain. The Court can award only

reasonable compensation to the plaintiff for his suffering the assessment of which is essentially a

guess work.

Pecuniary Loss

The plaintiff is obviously entitled to the expenses consequential to the injury. This item will

include expenses incurred for taking the plaintiff to a hospital, purchase of or equipment needed

for his treatment, fees of private doctors if consulted and similar other expenses. If the plaintiff

will require medical aid in future also, compensation for that too has to be allowed.

If the plaintiff’s injuries are such that he needed nursing and attendance, the expenses required for

this are to be allowed under the head cost of care. Serious injuries some times make a person

invalid for years and even for life. The plaintiff in such cases has to become sated for cost of

future care.

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In England as also in India, interest is allowed on damages awarded. In England interest on non-

pecuniary loss is allowed at the conventional rate of 2% from the date of writ to the judgement.

Interest is also allowed on pretrial pecuniary loss but no interest is allowed on future pecuniary

loss. In India, the practice is to allow interest from the date of suit or claim application. In Chameli

Wati v Delhi Municipal Corporation which was fatal accident case, interest was allowed on the

total award, as finally increased in appeal, from the date of the claim application at the rate of 9 to

12% from the date of application on the amount of compensation finally awarded.

f. Damages for Unwanted Pregnancy resulting from medical

negligence

The question as to what damages are recoverable in case of unwanted pregnancy resulting from

medical negligence sterilisation operation has been considered in different countries. It is

generally accepted that the mother in such a cases would be entitled to recover general and special

damages for personal injury in suffering unwanted pregnancy. But there appears to be a sharp

divergence of opinion on the question whether the parents would be entitled to recover damages

for economic loss in rearing up the child.

g. Injury to Property

If a chattel be lost or destroyed by a wrongful act of the defendant, the measure of damages is the

value of the chattel, but if the chattel be only injured, then the depreciation in its value is the

measure, with an extra allowance for the loss of the use of the chattel while it is being repaired or

replaced. The measure of damages where goods shipped are lost by fire would be the market value

of the goods when and where the goods were damaged less the proceeds of the sale of the

damaged goods, and in addition any freight, insurance, premia, and other incidental expenditure

which may have been lost. A person to whom a wrong is done is entitled to full compensation for

restoring the thing damaged to its original condition. This applies equally to a private person as to

a Corporation or trustee. If this is called restitution, a Corporation as well as a private person

would be entitled to it, but if by restitution is meant complete reconstruction irrespective of the

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damage done, then neither a private person nor a Corporation or a trustee is entitled to complete

reconstruction irrespective of the damage done.

Remoteness of Damages

The Problem of Remoteness

After the commission of a tort, the question of defendant’s liability arises. The consequences of a

wrongful act may be endless or there may consequences of consequences. For example, a cyclist

negligently hits a pedestrian who was carrying a bomb in his pocket. When the pedestrian is

knocked down, the bomb explodes. The pedestrian and four other persons going on the road die

and twenty other persons are severely injured due to the explosion. A building nearby is engulfed

in fire to due to the same explosion and some women and children therein are severely injured.

The question is can the cyclist be liable for all these consequences?

He is liable only for those consequences which are not too remote from his conduct. No defendant

can be made liable ad infinitum for all the consequences which follow his wrong full act. On

practical grounds, a line must be drawn somewhere, and certain kinds or types of losses, though a

direct result of defendant’s conduct, may remain uncompensated. As Lord Wright has said :

“The Law cannot take account of everything that follows a wrongful act; it regards, some

subsequent matters as outside the scope of for its selection, because it were infinite or the law to

judge the causes of causes, or, consequences of consequences. In the varied web of affairs, the law

must abstract some consequences as relevant, not perhaps on ground of pure logic but simply for

practical reasons.”

Remote and Proximate Damages

How and where is such a line to be drawn? To answer this question we are to see whether

the damage is too remote a consequence of the wrongful act or not. If that is too remote, the

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defendant is not liable. If, on the other hand, the act and the consequences are so connected that

they are not too remote but are proximate, the defendant will be liable for the consequences. It is

not necessary that the event which is immediately connected with the consequences is proximate

and that further from it is too remote.

In Haynes v Harwood, the defendant’s servants negligently left a horse van unattended in a

crowded street. The throwing of stones at the horses by a child, made them bolt and a police man

was injured in an attempt to stop them with a view to rescuing the woman and children on the

road. On of the defence pleaded by the defendant was no Vus

Act usinter veniens, or remoteness of consequences, i.e., the mischief of the child was the

proximate cause and the negligence of the defendant’s servants was the remote cause. It was held

that the defendant was liable even though the horses had bolted when a child threw stones on

them, because such a mischief on the part of the children was anticipated. “It is not true to say that

where the plaintiff has suffered damage occasioned by a combination of the wrongful act of a

defendant and some further conscious act by an intervening person, that of itself prevents

the court from coming to a conclusion in the plaintiffs favour if the accident was the natural land

probable consequence of the wrongful act.”

There are two main tests to determine whether the damage is remote

or not :

1. The test of reasonable foresight

According to this test, if the consequences of a wrongful act could have been foreseen by a

reasonable man, they are not too remote. If, on the other hand, a reasonable man would not have

foreseen the consequences, they are too remote. According to the opinion of Pollock C.B. in

Rigby v He wit, and Greenland v Chaplin, the liability of the defendant is only for those

consequences which could have been foreseen by a reasonable man placed in the circumstances of

the wrong doer. According to this test, if I commit a wrong, I will be liable only for those

consequences which I could foresee, for whatever could not have been foreseen is too remote a

consequence of my wrongful act.

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2. The test of directness

The test of reasonable foresight was rejected and the test of directness was considered to be more

appropriate by the Court of Appeal in Re polemis and Furness, Wilthy &Co. Ltd. According to the

test of directness, a person is liable for all the direct on sequences of this wrongful act, whether he

could have for seen them or not because consequences which directly follow a wrongful act are

not too remote. The only question which has to be seen in such a case is whether the defendants

act is wrongful or not, i.e., could he foresee some damage? If the answer to this question is in the

affirmative, i.e., if he could foresee any damage to the plaintiff, then he is liable not merely for

those consequences which he could have foreseen but for all the direct consequences of his

wrongful act.

The first authority for the view advocating the directness test is the case of Smith v London &

South Western Railway Company , the railway company was negligent in allowing a heap of

trimmings of hedges and grass near a railway line during dry weather . Spark from the railway

engine set fire to the material. Due to the high wind, the fire was carried to the plaintiffs cottage

which was burnt. The defendants were held liable even though they could not have foreseen the

loss to the cottage.

Interim Damages

The court has no inherent jurisdiction to order interim payment of damages pending the final

disposal of a suit for it is not a matter of procedure but of substantive right. Absence of such a

power in a court resulted in hardship in many cases. In England on the recommendation of the

Winn Committee on personal injuries litigation, provision was made in Section 20 of the

Administration of Justice Act, 1969 for making of rules to enable a court to make an order of

interim payment. Rules 9 to 18 of Order 29 of the Supreme Court Rules made in that behalf

regulate the grant of interim payment. Briefly stated, the rules provide that a court may or der the

defendant to make an interim payment of such an amount as it thinks just, not exceeding are as on

able proportion of the damages which are likely to be recovered finally by the plaintiff. Interim

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payment can only be ordered when (1) the defendant has admitted liability, or (2) the plaintiff has

obtained judgment against the defendant for damages to be assessed, or (3) if the action proceeded

to trial, the plaintiff would obtain judgment for substantial damages. Further , no order for interim

payment can be made if it appears to the court that the defendant is not (1) a person who is insured

in respect of plaintiffs claim, (2) a public authority, or (3) a person whose means and resources are

such as to enable him to make interim payment. In India, there are no corresponding statute or

statutory rules. The High Court of Madhya Pradesh has, however, held that interim payment can

be ordered in a suit on the analogy of the English Rules which can be applied as principles of

justice, equity and good conscience. It was on the basis that the High Court allowed interim

payment of Rs.250 crores in a suit on behalf of Bhopal Gas victims and their dependents against

the Union Carbide Corporation.

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Conclusion

Tort is a civil wrong, and secondly every civil wrong is not a tort. Tort is a civil wrong which is

redressibly by an action for un liquidated damages and which is other than a mere breach of

contract or breach of trust. In a suit for damages in a tort case, the Court awards pecuniary

compensation to the plaintiff for the injury or damage caused to him by the wrongful act of the

defendant.

Types of Damages :

a. Contemptuous Damages, Nominal Damages, Ordinary Damages and Exemplary Damages

. Damages for Unwanted Pregnancy resulting from medical negligence.

b. General and Special Damages.

c. Perspective and Continuing Damages

d. Damages for Mental suffering and Psychiatric Injury or Nervous Shock

e. Damages in an action for personal injuries

f. Damages for Unwanted Pregnancy resulting from medical negligence

g. Injury to Property

The Problem of Remoteness

After the commission of a tort, the question of defendants liability arises. The

consequences of a wrongful act may be endless or there may consequences of consequences. For

example, a cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. When the

pedestrian is knocked down, the bomb explodes. The court has no inherent jurisdiction to order

interim payment of damages pending the final disposal of a suit for it is not a matter of procedure

but of substantive right.

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Restitution to the Property

Property restitution also played an important role in the transition from apartheid in South Africa, where

discriminatory confiscations left the black majority holding less than twenty percent of the land. South

Africa’s restitution program is more clearly addressed toward righting individual wrongs, but its delivery

has been complicated by its subordination to a broader, politically contentious land redistribution program.

As a result, the decision of many restitution claimants to seek compensation rather than return to their land

has been seen as undermining the post- apartheid government’s commitment to increasing the overall

proportion of black landownership. However, recent commitments by the government to complete the

process have increased the chance that restitution—if not full redistribution of land—will be achieved in a

timely manner.

Bosnian restitution was an overtly human rights based remedy for resolving displacement, but was

dependent on—and complicated by—massive international intervention. Restitution was conceived of as a

way to secure the return of the two million civilians displaced in Bosnia’s 1992–1995 conflict, both for

their own good and in order to facilitate the policies of host- countries that wished to sustainably repatriate

large Bosnian refugee populations. However, the practical difficulties involved in seeking to undo

displacement through return led to a change of focus, with restitution coming to be seen primarily as a

remedy in and of itself. This greatly expedited the restitution of 200,000 claimed homes, supporting the

return of about half of those displaced by the conflict and restoring an important economic asset to those

who chose not to return.

Guatemala, on the other hand, illustrates the risks inherent in raising expectations regarding restitution and

return in the absence of either domestic or international resolve to guarantee full implementation.

Government suppression of a largely indigenous insurgency in the early 1990s led to the displacement of

between one and two million Guatemalans. However, the provisions on restitution set out in the subsequent

peace accords did not create clear precedence for victims of displacement vis-à-vis those who subsequently

occupied their land. As a result, many victims of the conflict had to be satisfied with government

commitments to provide alternate land elsewhere, a promise that was not fully borne out due to inadequate

funding as well as the ongoing neglect of those groups most marginalized by virtue of their displacement.

Drawing on these case studies, this study makes the following recommendations regarding how restitution

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programming in transitional settings should best be conceived and implemented:

Where restitution is included as a component of transitional programming, it should be conceived

of in a way that supports parallel efforts to provide broader redress and pre-empt future conflict. In

contemporary transitional settings, reparations and restitution should be understood as functionally

separate but complementary responses to human rights violations, each of which should be

available in proportion to manifest need.

Restitution processes should also be designed to complement broader, development-related efforts

to end or pre-empt conflicts over land and property. In this context, restitution is usually best seen

as a provisional measure applying legal criteria to right specific wrongs and should only be

coordinated—not conflated—with long-term reform efforts based on overtly political

considerations.

In order for restitution programs to succeed on their own terms and avoid raising false

expectations, their goals should be clearly conceived and mutually complementary. Fundamentally,

restitution should be conceived of as a legal remedy available on equal terms to all victims of

wrongful dispossession.

Restitution can also provide an important durable solution for ending the dislocation of refugees

and IDPs by restoring homes that can be returned to permanently or leased, sold, or exchanged in

order to finance resettlement elsewhere in the country or abroad. The common tendency to

privilege return over other durable solutions should be viewed cautiously as it may become a

rationale for conditioning restitution upon return, jeopardizing the fundamental right of all victims

of displacement to a remedy.

In terms of procedure, restitution programs seeking to address widespread and systematic

violations of property rights should be set up as streamlined administrative programs with relaxed

evidentiary rules.

Restitution programs should be based on clear parameters, and any “cut-off date” for claims should

encompass the entire time period during which relevant violations occurred.

Restitution programs should extend to significant, settled rights to occupy and use homes and

lands, even where they fall short of full formal title.

Restitution programs should set out clear rules balancing the rights of claimants against those of

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subsequent occupants. Because subsequent occupants may develop legitimate rights in abandoned

property with the passage of time, there is no hard and fast rule, but precedence should generally be

given to claimants, with consideration of compensation for subsequent occupants deemed to have

acquired bona fide interests in contested property.

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Bibliography

1. The Law of Torts, 26thEdition Reprint 2012, Justice G.P.Singh(former Chief Justice M.P. High Court)

Lexis Nexis Butter Worths Wadhwa, Nagpur Publication.

2. Law of Torts, 23rdEdition 2013, Dr. R.K. Bangia, Allahabad Law Agency, Allahabad Publication.

3. www.Google.com

4. www.Westlaw.com

5. www.Slide Share.com

6. www.Indian Kannon.com

7. www.Indian Law.com

8. www.U.S Law.com

Recommended.

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