JOINT TORTFEASORS, REMEDIES IN TORT & KINDS OF DAMAGES

JOINT TORT FEASORS

Where the same damage is caused to one person by several wrongdoers, they may be either joint or several tort feasor. Joint tort feasor are persons who are in law responsible for the same tort. Person are said to be joint tort feasor when their respective shares in the commission of the tort are done in furtherance of a common design but mere similarity of design on the part of the independent actors causing independent damage is not enough, there must be concerted action to common end.

Eg: If ‘A’ and ‘B’ jointly stone ‘C’s’ cow they will be deemed to be joint tot feasor. On the other hand, if they separately stone C’s cow they will be considered as independent tort feasor.

Parties cannot be joint tort feasor unless they have mentally combined together for some purpose. A generic name applicable to both the joint tort feasor and the independent tort feasor is suggested by G. Williams viz. “Concurrent tort feasors”.

“Concurrent tort feasors” are the tort feasors whose torts concurs or run together to produce the same damage. They are either joint concurrent tort feasor, where there is not only a concurrence in the chain of causation leading to the single damage but also the mental concurrence in some enterprise; or several concurrent tort feasor where the concurrence is exclusively in the realm of causation.

Persons having certain relationships are also treated as joint tort feasors. The common examples of the joint tort feasor are as follows:

·       Principle and Agent: If an agent does a wrongful act in the scope of his employment for his principal, the principal can be made liable along with the agent as a joint tort feasor.

·       Master and Servant: Similarly, when the servant commits a tort in the course of his employment of his master, both the master and the servant are liable as joint tort feasor.

·       Partners: For the wrongful act done by one of the partners in a partnership firm, in the course of performance of his duties as a partner, all the other partners in the firm are also liable with the wrongdoer.  

The liability of the joint tort feasor occurs where there is:

a) Agency; or

b) Vicarious liability; or

c) Common action, that is, the joint act done in the pursuance of a concerted purpose.

Thus either in fact or in the law, the parties must have committed the same wrongful act. The injuria as well as the damnum must be the same. The liability of the joint tort feasors is joint and several and the person may be responsible for the whole damage and the person injured may sue either one or more of them separately or all of them jointly for the full amount. The plaintiff has a choice to sue anyone of them, some of them or all of them, in an action for tort. Each one of them can be made to pay the full amount of compensation. Thus for the wrong done by the agent, both the principal and the agent are jointly and severally liable. Even though the actual wrongdoer is the agent, if the plaintiff so elects, he may sue the principal for the whole of damage.

Independent Tort Feasor and Joint Tort Feasors:

The independent tort feasors are the persons who cause the same damage by the independent wrongful acts. The damage is one but the cause of action which have led to that damage are two. Such tort feasor are severally liable for the same damage, and not jointly liable for the same tort.

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REMEDIES IN TORT 

Remedies in tort are of two kinds:

a) Judicial remedies; and

b) Extra judicial remedies.

The Judicial remedies are those which are obtained through the courts of law, while the extra judicial remedies are secured by the means of self help. Extra judicial remedies are the rights of distress; the right of retaking property; abatement of the nuisance and the right of re entry on land.

The main types of judicial remedies are of 3 types, which are as follows:

1. Damages:

Damages are the sum total of money which a person wronged is entitled to receive from the wrong doer as the compensation for the wrong done. Damages recoverable in a tortious action may be either nominal or real. The Nominal damages are a small sum of the money, awarded not by the way of compensation for any actual loss suffered by the plaintiff, but merely by the way of recognition of the existence of some legal rights vested in the plaintiff and that violated by the defendant. The Real damages are those damages which are assessed and awarded as a compensation for the damage actually suffered by the plaintiff and not simply by way of mere recognition of a legal right that is infringed.

2. Injunctions:

An injunction is an order by the Court to a party to the effect that he shall do or refrain from doing a particular act. Since it is an order to do or refrain from doing a thing, the order is called a mandatory or restrictive injunction.

Prohibitory or restrictive injunction - A prohibitory or restrictive injunction is an order restraining the defendant from committing or repeating an injurious act such as a trespass on the land or the erection of a building which would obstruct the plaintiff’s lights.

Interlocutory injunction -  An interlocutory injunction is one issued provisionally before the final hearing of the action or in order to prevent the commission or the continuance of an alleged injury in the meantime pending an injury into the case and the final determination of the right of the plaintiff to a perpetual injury.

Perpetual injunction – A perpetual injunction is one that is issued after the final hearing and the determination of the question at the issue between the parties. An interlocutory or a temporary injunction can only be issued in cases where there is a prayer for a perpetual injunction.

Ex parte injunction – Sometimes an ex parte injunction may be issued by the court in favour of a party when the latter insists that unless immediate injunction is issued restraining the other party from pursuing a particular course, irreparable damage will be caused to him.

Injunction are often issued either –

(a) Against the continuance of an injury;

(b) Against the repetition of one; or

(c) Against the commission of one.

One of the basic rules with regard to the injunction is that an injunction should not be granted where damages would form an adequate remedy. Nor will an injunction be granted where the case is not one of legal injury but of mere inconvenience. Moreover, an injury will not be granted in a trivial case. In an injury is disobeyed by any person he may be proceeded against for the contempt of the Court and punished by the imprisonment and the attachment of his property.

3. Specific Restitution:

The injured party is entitled to recover the specific restitution of the item of property itself from the wrong doer. Thus he who is wrongfully dispossessed of his land is entitled to recover, not the value of the land as the damages but the land itself; and a judgment in his favour by the force, if the need be.

So in the case of the chattels wrongfully taken or detained, the owner has the option of claiming either their value as damages or specific restitution of possession.

EXTRA JUDICIAL REMEDIES:

These are those legal measures which are adopted by the parties themselves for the redress of their grievances without going to the Court of law.

The extra judicial remedies are of 4 types, which are as follows:

1. Right of re entry on the land:

A person who has been wrongfully ejected from his land can re enter his land provided he does it peaceably and without using the force.

2. Re caption of the chattels:

If a person takes from my pocket my fountain pen and then runs with it, I can run after him, seize and then 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 the force that is necessary for taking my chattel.

3. Abatement of the nuisance:

  

Everyone who is damaged by the private nuisance is entitled to abate it or remove it.

Eg: A person may cut off those portions of one’s neighbour’s trees which projects over one’s boundary.

The abatement of the nuisance is a remedy which is not favoured by the law and is not usually advisable to resort to. It may lead to the breach of the peace or be the means of doing irreparable damage to a great public work. For this purpose only the least injurious method must be adopted and only the reasonable force needed must be used.

4. Distress damage feasant:

If a man finds the cattle or the chattel of another unlawfully on his land causing damage, he may seize and detain the cattle or the chattel impounded in order to compel the owner of the offending cattle or the chattel to make compensation for the damage done.

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KINDS OF DAMAGES

There are mainly four types of damages:

1. General Damages:-

The general damages are compensation for the general damage. It is that kind of damage which the law presumes to follow from the wrong complained of and which therefore need not be specifically mentioned in the plaintiff’s pleadings.

Examples of general damages are as follows:

(a) The mere injury to the feelings;

(b) The illness of the plaintiff, the illness not being a natural result of the defamatory words;

(c) The illness of any other person;

(d) The death of any other person;

(e) The mere loss of the society of acquaintances, as contrasted with the material loss of the hospitality;

(f) The loss of membership of some society or the congregation constituted for the religious purposes, the membership of which does not carry with it material temporal advantages;

(g) Any damage not pecuniary or capable of being estimated in the terms of money.

2. Special Damages:-

The Special Damages are the compensation for the special damage. It is the damage of such a kind that it will not be presumed by the law, but must be specially set out and proved by the party who claims it. The party who claims any special damages must specifically state and prove the particular damage which he has sustained arising out of the wrongful act of the other party.

Eg: If the defendant ‘B’, the editor of a newspaper, has published a defamatory article about ‘A’, law will presume the general damage in favour of ‘A’ and it is enough for ‘A’ to file the paper containing the defamatory article about him and claim the general damage. But if he has lost a lucrative job under ‘X’, who dismissed him on the reading of the article, ‘A’ must definitely state this fact in his pleadings and prove it before the Court for getting the Special damages due to the loss of the employment under ‘X’.

3. Contemptuous Damages:-

The contemptuous damages mark the disapproval by the Court of the conduct of a successful plaintiff. In such cases the chances of getting the costs are very little for the success of the plaintiff. Where contemptuous damages are awarded, it generally means that the defamatory statements are so nearly true that very small damages will suffice or that the plaintiff’s character is so bad that contemptuous damages should be given.

4. Vindictive or Exemplary or Deterrent Damages:-

The vindictive or exemplary or deterrent damages are awarded by the Court when it views with extreme displeasure the wanton misconduct of the defendant in utter disregard of the plaintiff’s right. The plaintiff may not have sustained any material loss, still in order to make an example of the defendant so that other similar minded persons should not attempt to do the similar wrongs. Exemplary damages are a category of damages, that could be awarded under the following situations-

a) Where there has been oppressive, arbitrary or the unconstitutional action by the servants of the Govt.

b) When the defendant’s conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff.

c) Where such damages are expressly authorised by the statute.