A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. – Mc Nair, J[1]

Having lived with the pandemic for more than a year now, it is important to recognize that while it has been a disruptive and challenging time for us, we haven’t faced the brunt of it the way the medical fraternity has. While the medical professionals and related staff have worked round-the-clock to manage the crisis, on the other hand, there have been reports of mismanagement, patients being denied due care and medical assistance, and in certain cases, non-observance of safety protocols; ultimately endangering the lives of both healthcare professionals and patients alike. These issues bring forth the topic of medical negligence and the role played by law and judiciary to curb it. This article discusses medical negligence in the context of the Indian legal system in the backdrop of the Covid-19 pandemic.

Understanding Medical Negligence:

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab[2] had observed that:

“Negligence is the breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered to his person or property...”

In simpler terms, negligence is failure to exercise due care resulting in injury. However, in the case of medical negligence, a higher degree of care is expected from the medical professional. Thus, the three-fold test to constitute medical negligence is:

1. Existence of duty to care;
2. Breach or omission of such duty and
3. Suffering from injury consequent to such omission or breach.

Upon fulfillment of the three-fold test, civil or criminal liability (in some cases, both) can be fastened on the medical professional and the hospitals. This brings us to another important question: what standards apply to assess the “duty of care” of the medical professionals?

Standard of Care and Bolam Test:

A simple lack of care or error of judgment is not negligence on the part of any medical professional. So long as the doctor follows protocol amenable to the prevailing practice of the medical profession, he cannot be held liable for negligence merely because a better alternative course of treatment was available or because a more skilled doctor would not have resorted to that procedure.

The Hon’ble Supreme Court in Dr. Suresh Gupta vs. Govt. of NCT Delhi[3] held that standard for fastening criminal liability and required medical negligence to convict a doctor must be “a higher degree of morally blameworthy conduct.”

Mere lack of necessary care, attention, or skill was observed to be insufficient to hold one criminally liable for negligence. However, it was observed that lack of a certain degree of care might create civil liability but will not be sufficient to attract criminal liability.

In this case, a young man was stated to have died during the simple procedure for nasal deformity and the prosecution under Section 304A IPC was quashed by the Hon’ble Supreme Court, setting aside the order of the High Court. The view taken by the Apex Court was criticized on the grounds that different standards could not be applied to the conduct of negligence of doctors and others.

Subsequently, the matter was referred to a larger bench in Jacob Mathew vs. State of Punjab[4], which endorsed the approach adopted in Dr. Suresh Gupta[5] that a high degree of negligence is the prerequisite for fastening criminal liability, and it was further observed that:

 “[i]n order to hold the existence of criminal rashness or criminal negligence, it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent.”

The facts of the case were that the oxygen cylinder connected to the mouth of a patient being treated for terminal cancer was found to be empty. The patient succumbed before the replacement could be arranged. The Hon’ble Apex Court set aside the judgment of the High Court and held that the doctors could not be criminally prosecuted.

In the absence of comprehensive guidelines concerning adjudication of medical negligence cases, it is no surprise that the Hon’ble Supreme Court may pass a contrary judgment in the current scenario.

Furthermore, Indian Courts have consistently, in the past, cited the Bolam test as a point of reference to decide medical negligence disputes. The Bolam test was first recognized in an English law case Bolam vs. Friern Hospital Management Committee[6].

In this case, the patient/claimant was not administered a relaxant drug to avoid risking death. However, the claimant suffered a serious fracture as a consequence. The claimant argued that the doctor breached the duty of care by not using the relaxant drugs.

However, it was held that the doctor did not breach the duty of care. The Court held that the medical professional is not negligent if he acted in accordance with the protocol accepted as proper by skilled men exercising and professing to have that special skill, merely because another doctor would have taken a contrary view.

Lately, there has been a shift in the position of the Indian Courts which have highlighted the deficiencies[7] of the Bolam Test and observed to revise the factors[8] set out in the Bolam Test.

Medical Negligence Amidst a Pandemic:

Our legal system has to propound a middle ground between the independence of doctors in taking decisions as per the changing conditions of the patient and the rights of the patient to be treated fairly.

It is an unfortunate fact that Indian medical infrastructure is one of the poorest and the most overstressed in the world[9], especially during the outbreak of the Covid-19 pandemic. Additionally, present circumstances are quite different from that of the ideal scenario.

There have been suggestions that medical practitioners should be temporarily completely absolved from medical negligence in view of the demanding conditions under which the doctors are operating.

However, experts are divided over granting complete immunity to medical institutions as several cases have been reported apart from negligence consisting of mismanagement to the unethical practice of overcharging the patients. It is argued that entangling medical professionals in litigation at a time when they are under immense pressure may lead to demotivation of the community.

Thus, relaxing provisions holding them criminally liable may grant them much-needed breathing space. Another interesting perspective is to explore alternative mechanisms to settle disputes in which the patient can be compensated monetarily to the extent possible.

The challenge is to strike a delicate balance by ensuring the independence of medical professionals, operating under severe resource crunch, in the pandemic stays intact while ensuring the safeguard of a patient’s rights and access to the best possible treatment.

The Way Ahead

Medical negligence litigation is among those grey areas of law that have strong and ardent proponents on both sides. Instead of providing complete legal immunity, a more pragmatic approach of allowing civil liability claims against the negligent doctor must be adopted where they may not be held liable for criminal negligence.

Moreover, a swift and transparent mechanism must be devised by Central and State Governments to decide those civil liability claims. Importantly, comprehensive guidelines laid down by the Hon’ble Supreme Court in consultation with all the stakeholders should be issued for adjudication of the medical negligence cases.

There are no two thoughts about the fact that our medical professionals are giving their all despite facing a serious dearth of vital resources such as medicinal oxygen, life-saving medicines, etc, and in some unfortunate instances have had to face violence.[10] The death of a doctor, during this pandemic, is no less than a soldier being martyred on a battlefield and for their supreme sacrifice, India shall always remain indebted to them.

[1] J Mc Nair, J in Bolam vs. Friern Hospital 1957 1 WLR 582

[2] Criminal Appeal Nos. 144-145 of 2004

[3] Criminal Appeal No. 778 of 2004

[4] Criminal Appeal Nos. 144-145 of 2004

[5] Supra

[6] 1957 1 WLR 582

[7] V Kishan Rao vs. Nikhil Super Speciality Hospital, Civil Appeal No.2641 of 2010

[8] Arun Kumar Manglik vs. Chirayu Health & Medicare Private Ltd. & Anr., Civil Appeal Nos. 227-228 of 2019

[9] https://medicaldialogues.in/india-slips-to-150th-rank-in-healthcare-world-economic-forum

[10] One of the incidents can be read about here: https://www.indiatoday.in/cities/delhi/story/doctors-attacked-in-delhi-hospital-by-family-of-covid-patient-1795567-2021-04-27

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The Oriental Insurance Co Ltd vs Smt Mamta Devi and Ors.

Facts:

The deceased along with two pillion riders were traveling from scooter to Meerut after which they met with an accident and struck against a truck, parked on the road without the indicator lights turned on. They were taken to the hospital after being treated upon which they succumbed to injuries and lost life eventually. A complaint was filed for recovery of an insurance claim, which was repudiated by the Insurance Company on the grounds of negligence. The tribunal court ordered the appellant that is the Insurance company to award a compensation of Rs. 5,72,770, aggrieved by which the Company filed an appeal in the High Court.

Issues:

• Whether both the deceased and truck driver were negligent?
• Whether the family of the deceased is entitled to compensation?

Legal Provisions:

• Section 128, Motor Vehicles Act,1988 – Safety measures for drivers and pillion riders
• Tort of Negligence – Composite negligence

Appellant’s Contention:

It was submitted by the learned counsel from the appellant’s side that there lied partial negligence on the part of the truck driver but it cannot be denied that the deceased was not negligent because he did not conform to the rules of the Motor Vehicles Act, wherein it is clearly mentioned that the sitting capacity in case of a two-wheeler vehicle is only two. The provision of negligence speaks for itself which highlights the failure to exercise care towards others whether be it intentional or accidental.

Respondent’s Contention:

It was contented by the counsel that the truck driver was also negligent by parking the truck alongside the highway by not complying with the traffic rules. The vehicle was insured and therefore the Insurance Company is liable to pay compensation.

Observations of the court:

The court had to thoroughly check the applicability of composite negligence and contributory negligence. The tribunal had not erred in concluding that the scooter driver was 30% negligent. The court read the judgment of T. O Anthony v Karvarnan and Ors. to distinguish between contributory and composite negligence. If proved that the negligence has occurred on the part of a person because of a breach in his prime responsibility and care which any prudent man would exercise, he is liable for the consequences of his act. But herein, the Insurance Company failed to prove if there were more than two persons on the scooter.

Judgment:

The decision of the tribunal court is not liable to be set aside and therefore it was ordered that the entire amount of compensation will be deposited by the Insurance Company.

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The Branch Manager vs Agilan

Facts:

A petition was filed by the respondent for merely spectate of a demolition of a building being carried out, due to which a part of debris fell on the respondent and sustained several injuries. The claimant started to suffer from permanent disability in the lower limbs. The Tribunal decided on awarding compensation to the claimant on the basis of two heads i.e. loss of earning power and permanent disability, however, aggrieved by this decision the appellant that is Insurance Company filed an appeal in the High Court.

Issues:

• Is the area of demolition to be considered as a private place?
• Has the respondent contributed to negligence?

Legal Provisions:

• Tort of Negligence
• Motor Vehicles Act,1988

Appellant’s Contention:

The learned counsel appearing on behalf of the appellants submitted that the place of incidence that is the area of demolition is a private place and knowing that is not safe to enter in the respective arena, the claimant decided to spectate in close premises, hence, he has deemed to contribute negligence on his own. It was also contended that since the respondent was spectating from the backside of the building, it couldn’t have been foreseeable for the bulldozer driver to check any individual’s presence. As per this contention, this is a case of volenti non fit injuria. It was further submitted the basis of deciding compensation by the Tribunal was contrary to the judgment of Full Bench in Cholan Roadways Corporation Ltd vs Ahmed Thambi.

Respondent’s Contention:

It was contented by the counsel on behalf of the respondent that the contention presented by the appellant’s counsel regarding private place doesn’t stand. The counsel drew the attention of the court on the definition of ‘public place’ explainable under the Motor Vehicles Act, 1988 and said that road is a public place to which the public carries a right to access. The counsel relied on the judgment of Pandurang vs New India LIC Ltd. The driver of the bulldozer was solely responsible, therefore, there is no negligence on the part of the claimant.

Observations of the court:

The court was of the view submitting that there was 20% negligence on the part of the claimant as well as 80% on the driver of the bulldozer. The Tribunal had erred in the calculation of the claim of compensation. It was the duty of the driver of the bulldozer to issue a warning in the public place. Compensation awarded on the grounds of permanent disability should be set aside.

Judgment:

The sum decided on account of permanent disability is deducted and the claimant is subjected to a compensation of Rs. 4,11,377 from earlier Rs. 5,11,377 .

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Law of Tort

An important arm of civil law, the law of torts is a significant feature of the common law legal systems. Semantically, the word ‘tort’ is derived from the Latin word tortum which means twisted, crooked or deformed.[1]

Tort can be defined as a civil wrong that arises out an act or omission (wrongful act) on the part of the wrongdoer/tortfeasor and can be compensated with unliquidated damages. It is a law based on precedents and thus there is no definite code or procedure that governs it.

Three elements that need to be proved in order to establish the wrong of tort-

1. Duty of care– The foremost element that needs to be proved is the existence of a duty of care on the part of the defendant.
2. Omission of that duty of care– The second element is the omission of the aforesaid duty of care by the wrongdoer.
3. Legal injury suffered by the plaintiff– The third element is the existence of a legal injury incurred by the plaintiff on account of such act or omission.

Legal Maxims

Legal maxim is an aphoristic statement which concisely represents a recognised principle of law, usually in Latin and derives its origin from the medieval European era. [2]Though these maxims lack the authority of law, yet they serve as beacons in guiding the court towards the path of fairness and justice.

This article seeks to discuss two important legal maxims of the tort law- Damnum sine Injuria and Injuria sine Damnum.

Legal Injury

In layman terms, the word injury is often understood as damage caused by an external force. However, in the realm of torts, the word connotes a ‘legal injury’ i.e. injury in the eyes of law. [3]In order to establish legal injury, presence of a physical wound or damage need not be proved. Mere establishment of an infringement of a legal right of a person constitutes the wrong of tort.   

Damnum sine Injuria

This Latin term can be understood as damage without injury. In this maxim, the word injuria means legal injury. As a recognised principle of the Law of Torts in India, damage without legal injury is not actionable in a court of law. Even if the plaintiff has suffered physical/monetary damage due an intentional or unintentional act of the defendant, the court of law would not grant legal remedy to him of his legal right has not been infringed. 

An important point that needs to be understood here is that the quantum of damage, in absence of unauthorised violation of legal injury, has no role in ascertaining the actionability of the plaint. Even the most terrible of physical injuries can go unpunished under the Law of Torts, if the violation of legal right is not established. On the other hand, even the slightest infringement of legal right despite absence of any physical harm can be actionable (though compensated with nominal damages).

Damnum sine Injuria Landmark Cases

The above-mentioned principle can be further elaborated with the help of some landmark case laws-

Gloucester Grammar School case[4]

In the present case, the defendant was a teacher in the plaintiff’s school who had, following a brawl left his services and established another school in the neighbourhood. Owing to the popularity of the teacher, many students followed his suit and joined his rival school. As a result, the plaintiff suffered monetary losses and a suit for indemnification was filed in the court of law. The question of law before the said court was whether the defendant could be held liable under ‘Damnum sine Injuria’.

Further, it was held by the honourable court that no compensation could be awarded albeit the defendant had suffered monetary damage, due absence of establishment of an infringement of legal right. Also, the defendant was well within his legal right to establish a school and the said act did not violate any right of the plaintiff. The monetary losses arising from the act of the defendant could not qualify as violation of legal right.

Mayor & Co. of Bradford v. Pickles[5]

In this case, the plaintiff filed a suit against the defendant for constructing a well on his own land thereby obstructing the flow of water on the plaintiff’s land thus causing monetary loss to him as a result of scarcity of water for distribution to the people catered to by the organisation. The court applied the doctrine of damnum sine injuria and concluded that the plaintiff was not entitled to compensation as the defendant had not caused any wrongful loss or violation of any legal right to him.

Chasemore v. Richards[6]

In this case, the plaintiff’s place was located at a lower elevation and the respondent was at a higher elevation. The defendant by constructing a well on his own land blocked underground water supply to the plaintiff’s mill thereby resulting in monetary losses to the plaintiff. However, the court ruled that in absence of any infringement of legal right of plaintiff, no legal remedy would accrue to the plaintiff.

Ushaben v. Bhagyalaxmi Chitra Mandir[7]

In this case the plaintiff alleged that continued sounds of religious invocation hurt her religious sentiments and thus prayed for a legal injunction. The court concluded that any hurt to religious feelings cannot construed as violation of legal right, hence the plea of the plaintiff was denied.

Mogul Steamship Co. Mcgregor Grow & Co[8].

This case relates to collusion by majority steamship companies to drive out one company by carrying tea trade at lesser freight. This resulted in wrongful loss to the plaintiff and was subsequently followed by civil litigation. The court held that since collusion by the companies did not result in any violation of legal right.

Action v. Bundell[9]

In this case. The plaintiff was lawfully carrying on mining operations on his own land which unknowingly led to draining of water kept on the plaintiff’s land. The plaintiff then filed a suit to bring about action for damages. The court ruled that since the action of defendant was lawfully justified and didn’t lead to the infringement of the right of the plaintiff, hence no action for damages lay.

Injuria sine damnum

This maxim is the mirror reflection of the aforementioned maxim. It means Injury without legal damage. As per this maxim, the smallest of legal injury even if it doesn’t lead to any damage is liable to be compensated with adequate compensation be it nominal, punitive or exemplary given the legal damage caused to the plaintiff.  Every person is entitled to some basic rights be it constitutional or statutory that he is capable of enjoying without any impediment to the same.

Any infringement of such rights is liable to compensated under law of torts by various types of damages or compensation.

The amount of damages depends on various factors- extent of legal injury suffered, nature of the right infringed, relationship between the plaintiff can the type of damage incurred, precedent requirement, extent of harm foreseen by the defendant, effort put in by the defendant to curb the damage caused etc.

Types of Damages

Nominal damages

These are the damages awarded to the plaintiff when the extent of damage suffered was very small or insignificant. Since the maxim of Injuria sine Damnum requires the common law courts to recognise even the slightest of the harm suffered, therefore such damages though as insignificant as Re. 1 are awarded by the courts in recognition of the infringement of the plaintiff’s right.

Most famously, Holt, C. J. has underlined the importance of nominal damages

 “If a man another cuff on the ear, though it costs him nothing, not so much as a little diachylon, yet he shall have his action against another for riding over his ground, though it did him no damage; for it is an invasion of his property and the other has no right to come here”[10]

In another famous case British Prime Minister Mr. Winston Churchill was awarded a nominal shilling in a libel suit brought against an author who had tarnished his image by publishing that he had been drunk in a party.[11]

Contemptuous damages

These damages are awarded by the courts when it feels that though the plaintiff’s legal right has been violated, he has not indeed come to the court with clean hands. The petitioner finds himself in the wrong when his legal right has been violated. In this case, the court awards damages in recognition of the legal right of the plaintiff though the amount of the damage is greatly reduced due to the wrong done by the plaintiff. The small amount awarded to the petitioner is to show the court’s scorn of the plaintiff’s base act.

Aggravated damages

These damages are awarded in due recognition of the exceptional harm or damage suffered by the plaintiff due to the act of the defendant. For e.g. if the plaintiff is sensitive to hearing maybe due to senility or ailment and the defendant knowingly played harsh music with the sole purpose of annoying him, the court may award aggravated damages.

In cases where a football player fell into a deep pit and injured his leg, he might be awarded aggravated in recognition of the damage caused to his sports career as opposed to a normal man who can claim only compensatory damages.

Punitive damages

These damages are awarded by the courts in order to deter social elements from bringing similar damage to any other person. Thus, deterrence is the motivating factor behind these damages.

Injuria sine damnum Landmark Cases

Ashby v. White[12]

This is a landmark case on Injuria sine damnum. As per the facts of this case, the plaintiff who was a qualified was prevented from exercising his lawful right to vote by the defendant. The court recognised that preventing a lawful voter from the electoral process is a violation of his legal right thus, the plaintiff was awarded nominal damages even though he had not suffered any physical injury or damage.

Asharfilal v. Municipal Corporation of Agra[13]

This case is similar to the British case of Ashby v. White. Herein, a voter’s name was dropped form the electoral list of local municipality elections due to which he was deprived from exercising his legal right to vote. Consequently, he brought about a plaint for damages to demand compensation from the Municipal Corporation of Agra for the violation of his legal right. The court citing Ashby v. White judgement, awarded nominal damages to the appellant.

Bhim Singh v. State of Jammu & Kashmir[14]

In this case Bhim Singh was an MLA of Jammu Kashmir State Legislative Assembly who, on his way to attend a legislative assembly vote, was apprehended by the state police and kept under illegal incarceration beyond reasonable time duration.

A Habeas Corpus plea was filed by his wife to obtain his malafide release. Upon investigation, it was found that the MLA was not produced before the magistrate within the reasonable of 24 hours after his arrest and also the police had obtained the arrest orders under clandestine circumstances which warranted due investigation and hinted at police collusion with rival political parties.

The Supreme Court recognised the democratic right of MLA Bhim Singh and granted compensatory damages of Rs. 50,000. Further, the relevant police official were reprimanded for dereliction of their lawful duty and malafide conduct.

 Marzettti v. Williams[15]

The plaintiff wanted to withdraw from his bank account using cheque. However, he was prevented from doing so by the bank manager. As a result, the petitioner filed a suit for damages on account of infringement of his legal right. The court recognised that the managers conduct of preventing the plaintiff from money from his own account even when there was sufficient money without any overdraft charges was a violation of the legal right of the plaintiff and liable to be compensated.

Conclusion

These two maxims- Injuria sine Damnum and Damnum sine Injuria are used by the common law courts to delineate a moral wrong from a legal wrong. The gravest moral wrong even with the most mala fide intention cannot be compensated with any legal remedy if there is no infringement of legal right involved. On the other hand, the slightest of legal right infringement even without any physical injury is to be compensated with a legal remedy.

[1] Ratanlal and Dhirajlal The Law of Torts 26th Edition

[2] https://www.mondaq.com/india/personal-injury/945062/legal-maxims-used-by-courts-in-india

[3] https://dictionary.cambridge.org/dictionary/english/legal-injury

[4] https://indiankanoon.org/search/?formInput=gloucester&pagenum=2

[5]https://casebrief.fandom.com/wiki/The_Mayor_of_Bradford_v_Pickles#:~:text=The%20court%20held%20that%20as,the%20water%20beneath%20his%20land.

[6] https://www.casemine.com/judgement/uk/5a8ff8c860d03e7f57ecd5a3

[7] https://www.casemine.com/judgement/in/560910fee4b014971118305c

[8] https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/economic-harms/mogul-steamship-co-v-mcgregor-gow-co/

[9] http://www.duhaime.org/LegalDictionary/P/PercolatingWater.aspx

[10] https://indiankanoon.org/doc/173563/

[11] https://dictionary.law.com/Default.aspx?selected=1332

[12] https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/civil-rights/ashby-v-white/

[13] https://indiankanoon.org/doc/1143315/

[14] https://indiankanoon.org/doc/1227505/

[15] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1160/index.do

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INTRODUCTION

The word tort comes from the Latin word ‘tortum’ which means ‘to twist’. It is connected with civil law. It is a wrongful act that arises when there is a breach of duty, independent of contract, which gives rise to a civil cause of action. The Law of Torts consists of various torts or wrongful acts in which the wrongdoer violates some legal right vested in another person. Each individual should respect other legal rights.
The person who commits this tortious action is known to be the tortfeasor. If such action arises, the tortfeasor has to compensate the victim for the harm caused. The Tort Law in India has evolved from the law existing in the UK. In the UK, it is termed as a ‘Judge Made Law.’ The definitions given by various scholars indicate that tort is a civil wrong however not all civil wrongs are torts.

ASSAULT AND BATTERY

An injury may be caused due to a variety of reasons. When a wrongful act is done on purpose, which in turn causes an injury, it is said to be an Intentional Tort. This particular type of tort contains various wrongful acts such as trespass, assault, and battery. Assault and battery are highly connected. They are like two sides of a coin. These are the most confusing terms that exist in both tort law and criminal law. There are few countries where both assault and battery have merged into one general crime and others where both are treated as separate offenses.

ASSAULT

In simple words, assault is an act of the defendant, which causes the plaintiff reasonable apprehension of the infliction of a battery on him. It is generally defined as an intentional act that puts another individual in the apprehension of immediate harm. This action is completed as soon as the defendant creates an apprehension in the mind of the plaintiff that he is going to commit an act against the plaintiff. Usually, if an act causes harm to another, it is considered to be a wrongful act. However, in the case of assault, an attempt to harm itself is wrong. It is an assault that criminalizes a threat of harm. Due to this, it is often termed as an “attempted battery”. Considering a simple example of a defendant pointing a loaded pistol at the plaintiff. Such an act can instill fear in the mind of the plaintiff. It is considered to be a warning signal. But if the plaintiff knows that the pistol is not loaded, then there is no assault.

Elements of an Assault:

Generally, if someone threatens bodily harm to another it comes within the purview of assault. To raise this to a level of actionable offense, two main elements should be present.
a) Reasonable apprehension- This main element makes a wrongful act an assault. The victim must reasonably believe that defendant’s conduct will humiliate him. Apprehension means a fear which is in the mind of a person that something bad or unpleasant may happen. It is an awareness that an injury is imminent. So, if a person has an intention to cause apprehension of imminent harm and succeeds in that, then he said to have committed assault.
b) Apprehension of Imminent Harm- The victim’s fear must be the result of a direct threat or a threat that is imminent. Future threats would not constitute an offense of assault. Whether an act creates an apprehension in the mind of a person varies depending on the situation. It takes less time and effort to create apprehension in the mind of a child than an adult. Another case is where an assailant points a gun at a sleeping person. In this instance too the person is unaware. This would not constitute an offense of assault.
It is to be noted that the above-mentioned essentials must be present with adequate evidence to make a person guilty of assault. But it is difficult to prove the intention of the offender in such cases. So the court usually will consider the viewpoint of a person with sound intellect in that he should be able to perceive what is harmful or aggressive.

Remedies:

Remedies form an important part of the field of law. In tort law, the various remedies available are damages, injunctions, writs, and self-help. These bring back the affected party to their original situation before the event. Various remedies come under assault:
1) Damages- The primary remedy is that the affected party can always bring an action to claim damages. The compensatory damages awarded in this case can be classified into three:
i) General Damages- It is most likely that the plaintiff or the affected party will face emotional pain and suffering and other mental distress after such an apprehension. General damages seek to compensate such victims for the kind of harm that can be expected from the wrong committed. A special request is not needed for such damages.
ii) Special damages- It compensates the plaintiff for specific expenses caused by the assault. If the plaintiff after the apprehension, feels uncomfortable to do his job or if he feels that he requires on-going psychiatric care, he will be compensated. If he cannot work for some time, he will be awarded past lost wages and loss of future wages.
iii) Punitive Damages- It is also known as Exemplary Damages. Such damages are maybe awarded without any claim. It will help the future generation not committing such offenses. The defendant should have the intention to cause the assault, then only such compensation will be rewarded.
2) Self Help- This is yet another remedy available for assault. Law does not require a person to approach a Court for redress. He can himself redress the issue instead of suing the defendant in a court of law.

BATTERY

Generally, assault precedes battery. Showing a clenched fist is assault, but if a physical strike happens, it will amount to battery. However, not every battery cases include assault. If a person is hit by a blow from behind, then this will result in a battery without being preceded by assault. The person being hit does not have prior knowledge of the act. Battery is generally defined as the intentional touching of or application of force to the body of another person or anything related to them, in a harmful or offensive manner without the consent of the person.

Elements of Battery:

The wrong of battery consists of an intentional application of force to another person without lawful justification. The important elements are as follows:
a) Intention- This is the most important element in all criminal and civil offenses. The intention to cause harm to a person is a part of the offense of battery. Even if in the case of transfer of act, for example, A tries to hit B but ends up hitting C. This shows that he had the intention but failed in the intended act. Still, he will be liable.
b) Contact- Contact or use of force is necessary for such a wrongful act. This contact should be made without consent. Cause of harm is not required to show the use of force in the battery. The injury need not be always caused by direct physical touch. The force can be given indirectly. For example, when the tortfeasor beats someone using a stick.
c) No Lawful Justification- It is always necessary that the force so used should be unlawful and without any justification. The complainant has to prove this. When two people are walking on the footpath past each other silently, there might happen to be physical contact. This is not considered to be a battery as it is not unlawful. But if a fight happens between the two, then there is an offense of battery by the person who has started the fight.
d) No consent- This is yet another important essential for this wrongful act. The tortfeasor should have committed the act without the consent of the victim.

Remedies:

Like assault, various remedies are available under the offense of battery.
1) Legal Remedies- Damages are the primary source of remedy for any offense. Here, compensation is given to the affected party by the tortfeasor to compensate for all injuries caused. It can be awarded even in the case of mental suffering and pain created by such an act. Compensation is directly proportional to the victim’s loss.
2) Restitutionary remedies- Such a remedy will help the plaintiff reach back to his original position, which means to the state before all of it happened. It includes a form of remedy known as ‘Replevin’. It helps the affected party to recover his or her personal property that was lost due to battery.
3) Equitable remedies- Such remedies are granted when monetary compensation cannot serve the purpose. In the cases of battery, the victim can obtain a temporary restraining order which prevents the other party from making any contact with the victim. They can also get a temporary or permanent injunction.

DIFFERENCES:

In a nutshell, the differences between assault and battery are as follows:
a. Assault is the attempt to commit battery. Battery includes intentional application of force to another person unlawfully.
b. The main aim of an assault is to instill fear in the person whereas in the case of battery it is to harm a person.
c. Assault is considered to be an incomplete battery as there is no actual contact. The threat of violence is enough for an assault. Battery requires actual contact with the person.

RIGHT OF DEFENCE

General Defences form a vital part of tort law. Whenever the plaintiff brings an action against the tortfeasor for the wrongful act committed by him, he will be held liable. However, the tortfeasor will have some defenses available with him, so as to absolve him from the liability.
Few of the relevant defenses are as follows:
a. Act of God
b. Private defense
c. Volenti non fit injuria or the defense of Consent.
a. Act of God is recognized as a defense which also comes under the rule of Strict liability. This defense is considered when damage is caused by natural events like earthquakes, storms, heavy rainfall, etc.
b. A person has a legal right to protect himself and his property by using reasonable force. This is known as Private or Self-defence. The only condition is that there must be an imminent threat to a person’s life and property. The force used must be reasonable to the apprehending danger.
c. This maxim literally means that if a person voluntarily agrees to do something, then the injury caused through that act will not be considered. The consent given can be either express or implied. It is to be noted that if the act goes beyond the limit of what has been consented, then he will be held liable.
There are few defenses available for both assault and battery cases. The most common defense is Self-defence. The force used for such a defense must be reasonable and proportionate to the harm caused in the case of battery. The defendant should prove that this was the only way available to protect himself. Consent can also be considered as a defense in the case of assault and battery.

CONCLUSION

According to intentional torts, assault creates an apprehension of the injury. Battery is an intentional tort dealing with creating harm to another person without consent. After understanding the concepts in its entirety, it can be concluded that assault by itself can produce psychological damage and needs special laws of its own.

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Introduction

Damages under Tort Law is referred to as a form of compensation that a person responsible for the tortious activity gives to the victim.  

“Damages” is often mistaken for “damage.” It should be known, though, that these two words are significantly different and distinct from one another. Although “damages” refers to the compensation awarded or sought, “damage” refers to the harm or loss that has been done.

In order to claim damages, person is required to show that he has suffered an injury (violation of legal rights); unless he proves that, he couldn’t claim damages. It can be understood by two maxims:

Injuria sine damno: It means that there is a legal injury without any actual damage. Here the legal right of an individual is violated therefore he has a right to go to the court to enforce such right. It will be immaterial that he didn’t suffer any loss, as long as there is violation of his rights, he can claim damages.

Damnum sine injuria: It means that there is actual damage but no legal injury and thus the person cannot go to the court to enforce his right because he has no such right in the absence of a legal injury.

It is notable at this juncture that, in general, losses can be distinguished from rewards. Compensation is a wider category that covers payments rendered to an individual for any form of loss or harm incurred due to illegal causes such as the possession of the property from another party or regulatory infringement, termination of a job; moreover, penalties derive from wrongs in motion.

Damages have acquired a great deal of importance, especially in the sense of commercial transactions and as disciplinary remedies for the infringement of the rights of persons involved.

Kinds of Damages

When the plaintiff suffers loss or injury due to the wrongful act of the defendant then he is entitled to receive damages from the defendant. Damages are, therefore, the sum of money which the plaintiff is entitled to receive from the defendant(wrongdoer) as compensation; for the injuries or losses suffered by him. Thus, the damage is the loss which is the cause of the award of the damages. Damages are of the following kinds:

1. Contemptuous Damages
2. Nominal Damages
3. Ordinary Damages
4. Aggravated Damages
5. Exemplary Damages
6. Prospective Damages

Contempuous Damages

These damages are awarded because it is felt that a lawsuit against the defendant is for a very trivial issue, for which he/she shouldn’t have approached the Court. The complainant may be legally correct here, however morally incorrect. Courts in these situations grant compensation which is very minimal. Contemptuous damages are often referred to as damages ‘derisory.’

Nominal Damages

In such situations where the civil right of the claimant is violated but there is no damage, negligible damages are awarded. For instance, without permission, a person walks across another’s property, thereby committing trespass-the landowner takes no physical damage. The judge can grant minimal damages in such a case, say few hundred rupees.

In Ashby v. White, in the parliamentary elections in England, the appellant wrongfully failed to register the complainant’s properly tendered vote. There was no defeat for the appellant since the candidate he would have chosen to vote for was chosen. The defendant was responsible for a total of 5 pounds, along with the court expenses.

Ordinary, Aggravated and Exemplary Damages

‘Compensatory’ damages are sometimes referred to as regular damages. By allowing him cash reward equal to the injury sustained by him, ordinary damages are awarded to compensate the wounded person equally. Aggravated damages are awarded where, on account of the manner of commission of a tort, the judge raises the damages. Therefore, an act committed willfully, maliciously or with excessive regard in the course of an attack could call for a higher award. Aggravated damages are considered such damages.

Exemplary damages are sometimes referred to as ‘punitive’,’ vengeful’ or ‘compensatory‘ damages. And the difference drawn by Pearson L.J. is that the penalties of this sort are not meant as restitution for his loss to the complainant, but as what the Americans call “smart money,” a form of retribution for the claimant and a threat against unwelcome conduct to others. This purpose, though, is foreign to the general philosophy of the law of tort.

According to Lord Devlin, exemplary damages can be awarded in the following three exceptional cases:

1. Where the plaintiff has been aggrieved by oppressive, arbitrary or unconstitutional action by servants of the government, “though not when he is subjected to similar treatment by corporation’s or private individuals.”
2. Where the defendant’s conduct “has been calculated by him to make a profit for himself which may well exceed the compensation payable by him to the plaintiff…. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay”
3. Where Exemplary damages are authorised by the Statute.

In India, the above rule has been followed. A beautiful illustration is the recent case of Bhim Singh v. State of J & K, where Mr Bhim Singh, an M.L.A., was arrested and detained to prevent him from attending the Assembly Session. The Supreme Court considered it to be an appropriate case for awarding exemplary damages amounting to  Rs. 50,000.

Prospective Damages

Not only can a tort inflict current injury, but also continuous or potential damage, as if a person is severely harmed and then robbed of potential earning capacity. Yet common law insisted that with all damages, current and future, there should be one suit since public justice requires an end to lawsuits.

This being so, provision is not only made in the form of ‘prospective’ damages for current injury but also as best it can be for potential loss. On this topic, a case worth noting is that of Y.S. Kumar v. Kuldip Singh, of which the Excise and Taxation Officer was the respondent. A vehicle struck him, which resulted in physical damage to his ankle. Owing to those injuries that impacted his enjoyment of his daily life, he suffered permanent disability.

The High Court of Punjab and Haryana paid a prospective reward of Rs. 7,200 estimated at Rs. 50 p.m. In regards to physical injury and lack of enjoyment of everyday life for a period of 12 years,

Thus, it has been shown that in one and the same action, the damages are measured. For the same cause of action, there should not be more than one suit.

There are, however, two exceptions to the above rule:

(a) if the same wrongful conduct violates two different rights, different acts are allowable. (For example, the appellant was a car driver in Brunsden v. Humphrey. He was seriously injured and his car was destroyed due to the servant of the defendant’s negligence. He regained the car for the damage and then brought a separate suit for personal injury. Held:  the latter allegation was maintainable since there were distinct causes of action.)

(b) Because the tort is an ongoing one, subsequent sue for personal injuries.

Damages for Tort

The measure of damages or test by which the amount of damages is to be ascertained is, in general, the same both in a contract and in tort, with these distinctions-

1. In ascertaining the sum of damages, the court may reasonably consider the purpose with which a tort is committed. In the event of fraud, evidence of intentional intent is admissible. Thus, the court took into account the defendant’s criminal intent in awarding damages in an attempt to dump tainted barley on the plaintiff’s property in order to poison his chickens.
2.  Property losses are visited only with damages proportioned to the real pecuniary injury suffered, where the gist of the action is damage, pecuniary or estimated in money. But if absolute rights are violated, negligible damages are awarded to a complainant not because he has lost anything, but because his rights are absolute. Where the harm is to the person or sentiments, and the evidence show deception, intent, cruelty, etc., the harm is aggravated and the claimant seeks aggravated damages, although they do not carry any proportion to the complainant’s real loss. In a tort suit against the State or its agents, exceptional damages are also permitted if the suit accused of in a tort action or is unlawful and also against a defendant who, by performing the crime, makes a benefit which can surpass the usual fee owed by the defendant. However, for an infringement of a contract, exceptional damages can not be recovered, except in a suit for infringement of the intent of marriage.

Injunction

An injunction is a judicial order prohibiting the commission, reproduction, or continuance, of a defendant’s wrongful act. He must show the presence of either harm or fear of harm in order to entitle a claim of an injunction. The harm detained must have an immediate risk of a serious sort or disability that would be irreparable. A preventive injunction should be issued only if the defendant has infringed or may infringe any civil right or equal right of the complainant and not simply on the grounds that it is unconscionable for him to do what the defendant wants to do. In such circumstances, the court can need to reconcile two rights, e.g. Until agreeing to issue an injunction, a right to privacy and a right to freedom of speech.

An injunction may be granted to prevent waste, trespass, or the continuance of nuisance to dwelling or business houses, to right of support, to right of way, to the highway, etc.; or the infringement of patent rights, copyrights and trademarks; or the publication of trade secrets; or the publication of manuscripts letters, and other unpublished matter.

Damages under Tort refers to a form of compensation due to a violation, damage or accident, in basic terms. 1 Damage may claim defence of “expectation interest,” “reliance interest,” or “restitution interest,” as explained by Fuller and Perdue. Expectation interest (also known as performance interest) refers to putting the plaintiff in a position he would have occupied, if the defendant had fulfilled his promise by compensating for the damage, thus attempting to fulfil the promisee’s expectation; dependency interest (also known as status quo interest) refers to returning the plaintiff to a position he was in for.

Damages is often confused with” damage. It should be known, though, that these two words are significantly different and distinct from one another. Although “damages” refers to the compensation awarded or sought, “damage” refers to the harm or loss that is alleged or awarded for such compensation. ‘Damage’ may be monetary or non-direct (which may apply to monetary benefit in situations where there is a lack of reputation, physical or emotional injury or suffering).

It is notable at this juncture that, in general, losses can be distinguished from rewards. Compensation is a wider definition that covers payments rendered to an entity for any form of loss or harm incurred owing to causes such as possession of the property from another person or regulatory breaches, removal of jobs, seeking compensation by the aggrieved party; moreover, penalties occur from actionable errors.

Damages have gained much significance especially among commercial transactions, and as punitive measures for violation of rights of concerned persons. The nature of damages granted across various areas varies significantly.

For example, it is appropriate to consider the substantial discrepancies between the two in regard to penalties given under indemnity contracts. An indemnity is a form of protection from third-party damages assured by an indemnity arrangement between the claimant (indemnified) and the compensator. A demand for compensation arises from the initial indemnity arrangement, while a claim for damages arises from a breach of contract. The risk of potential losses and responsibility to pay damages transfers to the indemnifier, unlike damages in ordinary contracts where the claimant has the sole liability to pay the damages in arbitration contracts.

Damages are popularly granted in cases of tort or on breach of contract. This paper broadly covers damages in cases of contractual breaches in India, with a brief overview of claim and grant of damages in cases of torts, indemnity contracts, arbitral proceedings, sale of goods, consumer law and intellectual property rights (copyrights, trademarks and patents).                                                 

Two forms of Damages

There are two forms of granting damages; first is Liquidated Damages and the second one is Unliquidated Damages.

Liquidated Damages

Liquidated Damages means those damages which are predetermined. And based on such predetermination the person is given damages. For example, in Contracts, both parties set an amount which either of them would have to pay in case of the breach of contract.

In India, liquidated damages are recognized under Section 73 and Section 74 of the Indian Contract Act, 1872. “Sec. 73 notes that” when a contract has been breached, the aggrieved party is entitled to claim restitution or other harm or injury necessarily incurred on it during the ordinary period of breach of contract or already recognised by the parties to the contract when entering into the contract.

Sec 74 states that ‘If a contract has been broken and whether a sum is specified in the contract as the amount to be paid for the violation, or whether the contract includes some other liability clause, the party complaining about the violation shall be entitled to obtain fair compensation from the party that has violated the contract, whether or not the real damage or injury is found to have been incurred thereby.

The parties themselves may decide how much should be charged in the case of a violation, specifically because penalties are often difficult to determine. Courts will impose a rule of liquidated damages as long as it is impossible to assess the exact amount of harm (in which case testimony of it is simply rendered at trial) and the quantity is fair in terms of the anticipated or exact harm. The surplus is considered a penalty if the liquidated quantity is unreasonably high, which is claimed to be against a public policy which unenforceable. 

Unliquidated Damages

Unliquidated Damages under Tort means those damages which are not predetermined and are based upon the evaluation of loss the person has suffered. Unliquidated Damages are awarded in the case of Torts as both of the parties are unaware of the potential loss’s compensatory equivalence.

For example, A trespassed on B’s property. B caught him and A ran off. There is no predetermined amount that has been fixed for the trespasser. Court will in such cases grant the damages based on the facts.

Damages for the Nervous and Mental Shock

Nervous shock is the onset of a mental illness induced by witnessing another’s careless behaviour or the effects of it. It must be defined as more than sadness or despair, i.e. an actual mental disorder, for the purposes of prevailing in a suit.

Nicholas N Chin says the nervous shock is “..” The name applies to a broad variety of recognised psychological disorders, such as phobic anxiety, neurosis and post-traumatic stress disorder, which are more than just sadness, frustration or unhappiness.

As part of a therapeutic trend after railway crashes, John Eric Erichsen described nervous shock injuries. Many of the railway collisions, Erichsen said, lead to “severe and prolonged” nervous shock, “weariness,” “cramps,” and other symptoms. In Alcock & Others v Chief Constable of South Yorkshire Police, Lords Keith and Oliver feels that the word nervous shock is a “misleading” one,

Since it actually protects a wide variety of possible claims in the area of negligence. Any doubt remains as to whether the courts will reliably assess the degree of a psychological disability in terms of the required level of healing that may or should be awarded. In the 19th Century case of Lynch v Knight, this is seen the statute can not value emotional pain or discomfort and does not claim to cure because the illegal act accused of induces it alone.

Especially in today’s world, where since the time of the Lynch decision rehabilitation on the basis of solely mental disability, there have been so many medical advancements, it should actually be no more difficult than rehabilitation with a physical injury.

Whether the market inflation influence the Damages?

Generally, the market inflation grows with passing years. So does Court takes it as a consideration while awarding Damages? There are two case laws that substantiate the jurisprudence in this matter:

In the case of Jaimal Singh v. Jawla Devi, it was decided that the Court will have to consider the currency valuation and market inflation while deciding the damages.

The court in Kerala State Electricity Board v. Kamalakshy Amma decided that market inflation should be a factor while deciding the compensation. Court also upheld the above-cited case of Jaimal Singh.

FAQs

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A tort is a legal wrong and not a criminal offence. Tort means the infringement of a legal right of individual and simultaneously the legal duty of the person committing it is also violated. In torts, the aggrieved party is compensated by the wrongdoer. The compensation given to the injured party is in the type of unliquidated damages which are not predetermined and are decided by the court depending upon the seriousness of wrong committed. In tort, there are legal remedies, which are checked or approved by the judiciary. If a wrong is committed against a party the court can ask the tortfeasor to compensate or return the belonging as they were to the injured party. In some cases, depending upon the seriousness of tort committed, even the court will convict the wrongdoer. There is two type of remedies in tort- Judicial remedies in torts law and extrajudicial remedies in torts law. The research paper will deal with the judicial remedies which are provided by the judiciary or the court to the aggrieved party. The research paper will explain and analyses the different type of judicial remedies provided by the judiciary in India. The primary goal of the analysis is to explain when and what type of judicial remedy will be provided by the court. Each judicial remedy is further classified into different types and these classifications is also explained in this research paper. For better understating of the topic, case laws are also included in the paper. In this paper research paper, I have used the doctrinal method of research. Secondary data collected from books, articles, journals and internet is used in this research.

Keywords- civil wrong, legal right, infringement, compensation, unliquidated damages, judicial remedy.

Introduction

Matters in which legal right are involved remedies are given to the subject in society to ensure justice and peace in that particular state remedies are types of compensation give to a person he suffered for the defect. It may be awarded to any person in different ways like it may be ordered by the court, granted by judgement after trial or hearing by agreement between the person claiming harm and the person who has caused it. There are some different forms of compensation open to the resident of a nation where some solution includes some particular action includes any money to be compensated for any incurred induced by accident or violation of the contract by certain people.

The scope of this research paper covers the definition of torts and the remedies in torts that are judicial remedies under the judicial remedies it also talks about the types of remedies that is defined under the judicial remedies. Also, the difference between judicial remedies and extrajudicial remedies will be discussed because these are two remedies in torts.

The scope of this study also deals with the various type of judicial remedies and the type of remedies how they are different from each other.

Definition of torts law

Torts is a legal wrong and not a criminal offence. Tort comes under the category of civil wrong, but it is different from contract infringement and confidence abuse. Torts mean the infringement of a legal right of individual and simultaneously the legal duty of the persons committing it is also violated. Everyone has a right to law and with that right, there also comes a duty. So, two things are violated simultaneously when a tort is committed. In torts, the aggrieved party is compensated by the wrongdoer. The compensation paid to the aggrieved party is in the form of unliquidated damages which are not predetermined and are decided by the court according to the seriousness of the offence.

“civil mistake in terms of which the compensation is a common lawsuit seeking unliquidated damages and it is not simply a violation of contract or a breach of confidence or some such provision on which is purely equal.” – Salmond[1]

There are three essentials needs to be present to constitute a tort:

• Wrongful act or omission
• Legal damage
• Legal remedy

Types of Judicial remedies

1. Damages
2. Injunction
3. Specific restitution of property

Damages

After the tort is committed damages is the most important remedy for the plaintiff. Because the complainant should be paid in full for the damage incurred by the other party and also restore the position of the plaintiff this may be done by a payment of money. In the leading case of SCOTT V SHEPHERD[2], A defendant made of gunpowder hurled a lighted squib from the street to the store where large crowds of citizens were gathering the squash lit up around yates wills hurled the quid around the street to avert harm to himself and yates next to Ryal lands the squib. Ryal took the squib and hurled it to another marketplace in order to prevent his own products from getting damaged. The squib lit the complainant plaintiff eyes were injured by the lighted squib combustible matter. The complainant has lost his eye usage plaintiff sued the defendant for trespass and assault on the lighted squib for throwing casting and tossing. The jury rendered a plea verdict in favour of the applicant.

Types of damages:

Nominal damages

Nominal damages are those damages where the plaintiff proves that the defendant has committed a tort against the plaintiff but there is no damage suffered by the plaintiff. If the civil right of the plaintiff has been violated but no harm has occurred thereby (injuria sine damno) the appreciation of his mistake the statute grants him negligible damages. in the case of Ashby V White[3], the returning officer wrongfully disallowed a registered elector to the voter in a general election, but it was noted that the elector had not suffered any defect and that the candidate for which he wished to vote has secured the election for which the defendant has been held responsible.

Contemptuous Damages

They are awarded once the court considers the claimant’s action through technically thriving was while not benefit and will not have been brought. The claimant may be at risk of any expenses that the winning party usually get.

General damages

this damage is the sort of damage that should be incurred by the tort. Which is actionable per se and so there is no reason to say e.g. loss of credibility in a libel suit.

Special damages

the terms used by the claimant negligence which must be shown as a part of the cause of acts in torts. where damage is said to be the gift of the action e.g. negligence, slander, a nuisance.

Compensatory aggravated and exemplary damages.

In this court may notice to check whether there is a specific tort committed or not then its take decision. It purposes of committing tort is to harm the proper feeling of dignity and pride of the plaintiff than the aggravated damages may be awarded. It is one type of damages for the compensating the other party these damages given when their greater injury happens. The incorrect and escalated harm is referred to as aggravated injury. The idea is not to punish the wrongdoer in granting such damages, therefore are “compensatory” in nature rather than punitive. Where the damages received outweigh the property harm incurred by the complainant in order to avoid such conduct in the future, the damages shall be defined as “exemplary, punitive or vindictive”. In the matter of Bhim Singh v state of J&K [4] there was wrongful detention in the case of Bhim Singh a member of the legislative assembly was arrested and detained to prevent him from attending the assembly session then it was challenged in supreme court through a writ petition but at the judgement time, Bhim Singh had been set free. There was now no need to order that he be set at liberty but the supreme court considered it to be an appropriate case for awarding exemplary damages amounting to Rs 50,000 to Bhim Singh which the state government has to pay within 2 months while granting compensation.

Injunctions

An injunction is a type of order which is given by the court for doing of some act or preventing conduct or continuity of any act the court has the right to concede or refused this remedy. The injunction is various kind

Temporary Injunction

It is an injunction which continues until a specific time a temporary injunction is generally granted before the case has been heard on merit it is only provisional only court have power for this

Permanent Injunction

It is an injunction which shall be the order issued after the appeals have been concluded case since the argument has been made that the permanent injunction is meant to eventually resolve the conflict between the parties. A perpetual injunction is a final order and is issued after the full consideration of the case.

Prohibitory and mandatory injunction.

A prohibitory injunction in this injunction defendant has not to do some act in negative way plaintiff have right to secure their rights and defendant do not interfere with the plaintiff’s lawful rights like as plaintiff has the lawful right to no one have to enter in his house so defendant should have to follow this act

The mandatory injunction in this injunction defendant has to do some positive act like as if there is a wall near the plaintiff house so plaintiff suffering problem due to this wall so it is a mandatory injunction for the defendant to remove the wall because due to wall plaintiff house is blocked so the defendant has to follow this.

Specific restitution of property

This remedy is a third type of judicial remedies and this remedy is for restore the plaintiff position the court may grant or order a return of the particular property to the complainant after it has been unlawfully dispossessed of its moveable or immovable property.

Differences between judicial remedies in the law of torts and extrajudicial remedies in the law of torts

The judicial remedies are a power of the court because such relief shall be given to the aggrieved party by the court or judge for the loss happen than court provides the compensation to the party for there loss suffered by the party

Judicial remedies are of three main type.

1. Damages
2. Injunction
3. Specific Restitution of Property

Extra-judicial remedies in the extra-judicial remedies if the injured party take law in there hand according to law and the injured party have all power that is known as extra-judicial remedies

These are of five principal types.

1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress damage feasant

Conclusion

Judicial remedies is an important remedy for torts because under this people can recover their position by the help of judicial remedy if any wrong happens then the court has the power to give compensation to the wounded party in the form of money that is not fixed its depend upon the loss happen under the judicial remedies the injured party will sue the wrongdoer and after the injured party get compensation in the type of unliquidated damages which is provided by the court.

Under the judicial remedies, they are divided into many parts because each remedy has those ere own law that is fixed or treated by the court. In the damages there are nominal remedies it simply tells about the injuria sine damno its means if the infringement of a civil right but no harm happen so the party can sue under the nominal remedies like this only under judicial remedies, they are divided into parts so that injured party can easily recover their position.

Under this judicial remedy, there are kinds of remedy so people can recover their position easily and the court of law can treat everyone equally so that everyone gets equal justice.

Author: Dipankar Kumar | Presidency University

[1] [1] Dr.  R.K. Bangia, R.K. Bangia’s  Law of Torts 4 (24th ed. 2017)

[2] Scott v Shepherd (1773) 2 W BI. 892

[3] Ashby v white (1703) 2 Lord Raym, 938;

[4] Bhim sing v state of j&k A.I.R 1986 S.C 494

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With the outbreak of Covid-19 which has affected all the sectors throughout the world, it is important to have right medical assistance. One of the biggest public, social, health crisis is being faced by India and the entire world. For the country to deal with it, a proper framework at national and state level has to be established. Covid-19 pandemic has disastrous consequences on the law and order governing the country. It has been declared “notified disaster” under Disaster Management Act, 2005. With the help of this act, assistance is provided to states. National disaster response fund and State disaster response fund are created under the Disaster Management Act, 2005 which provide funds needed to tackle with such a disaster. National Disaster Management Authority (NDMA) which formulates plans, policies, guidelines to ensure full protection and security. Such authorities are also established at the state and district level. The pandemic is also governed by the Epidemic Diseases Act, 1987 which is a century old British law formulated to tackle with dangerous pandemic. Wide powers are conferred to the State and Central Government which empower them to take unwarranted actions to curb the disease. Provisions made during such time are temporary and violation of such provisions lead to punishment in the form of penalty etc.

 Covid-19 and its liability under Tort of Negligence;

With the sudden outbreak of this horrible pandemic, it becomes important to address the issue of Covid-19 under tort law. A person who has knowledge of the disease and transmits such an infectious disease can be held liable under the tort of Negligence. In order to prove the tort of negligence, it has to be proved that

1. The plaintiff owed duty of care.
2. The plaintiff contravened the duty of care.
3. Element of causation
4. Damages on account of breach of duty

Duty of care:

First and foremost element is to prove that defendant owed duty of care towards the plaintiff. Duty of care does not mean social, economic, moral duty rather it implies legal duty. Every person is expected to exercise duty of care in such circumstances as would be exercised by a reasonable/prudent man – test of reasonable man. The Court stated that when a person was aware that he could transmit a deadly disease he owes a reasonable duty of care so as to not transmit to others^[1].

Breach of duty of care

In order to attract a claim under negligence it is important to show that the duty of care has been intentionally or with knowledge breached. . Every person is expected to exercise duty of care in such circumstances as would be exercised by a reasonable/prudent man – test of reasonable man. The standard followed here, is the test of reasonable man. In Covid19, such cases have been seen at an alarming rate, people showing symptoms or having tested positive are intentionally coming in contact with other people. 

Element of causation:

The most difficult part is to prove the element of causation i.e to prove that the plaintiff has acquired the deadly virus from the defendant itself, In other words defendant should be proved to be the original source of transmitting the virus. Causation can be proved easily in cases of transmission through direct contact. Causation can be proved in Covid cases if the test is taken rapidly.

Damages:

Plaintiff should have suffered mental of physical damage due to the said act of the defendant. Pecuniary damages are also included like hospital expenses etc.

Since the outbreak, there has been number of cases of infected people or carriers transmitting the deadly virus intentionally. It becomes highly essential to make people accountable for their negligent acts. In such challenging times, it is responsibility of every person to act prudently when they are aware that they are infected or are showing symptoms for the same.

Liability of Covid-19 under Indian statutes.

There are provisions under various acts that govern Covid-19. The pandemic is governed by the Epidemic Diseases Act, 1897 which is a century old British law formulated to tackle with dangerous pandemic. It is the shortest act which consists of 4 sections. Wide powers are conferred to the State and Central Government which empower them to take unwarranted actions to curb the disease. Provisions made during this period are temporary and violation of such provisions lead to punishment in the form of penalty etc. Violation of any rule formulated under Epidemic Diseases Act, 1897 is to be held accountable as per Section 188 of IPC, which states that any person disobeying an order of the public servant is punished with imprisonment extending upto 6 months. Apart from the Epidemic Act, various provisions dealing with such circumstances have been enshrined in the IPC itself.  Section 269 which talks about the negligent acts that transmit infectious disease to other people. Section 270 is an aggravated form of the above. Section 271 deals with any person violating the quarantine rules.

Conclusion:

With the Covid-19 outbreak, it is important to analyze the legal framework dealing with it. India truly lacks in such a challenging time is a new legislation specifically dealing with such pandemics. The Epidemic Diseases Act, 1987 was an archaic British law, with the changing dynamics every day, minute and second, It is appalling to see India still relying on it. No inclination is being seen from the Union Government to draft something specifically dealing with Covid-19 and bring all the events with respect to it under one broad umbrella. In UK, there has been a specific act namely Corona virus Act 2020, which deals with much contemporary issues such as employment modifications provisions, food supply provisions, leaves in lieu of providing medical assistance, financial assistance to the sectors in need etc. Singapore has also enacted Infectious Diseases Regulations, 2020 which formulate and provide information on the problems faced currently. Such consolidated, pro-active policy helps in clearing out ambiguity and provides regulations on the basis of existing circumstances. Infact, the present government has been making impromptu decisions. The wrath of which is being felt by the unorganized sector the most. It is pertinent to note that Epidemic Diseases Act, 1897 restricts itself and deals only with the wide powers conferred to the government, there is no provision that restricts such powers in lieu of its exploitation. There should be more focus on the emergency health sector and the legal framework to deal with the issues faced by health sector. A comprehensive legislation is required to cover all the aspects existing under its ambit.

^[1] Hendricks v. Butcher 129 S.W. 431, 144 Mo.App. 671

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Meaning

Assault refers to making of gestures or words that would instil a feeling of fear under other person. the assault is referred to the trespass of a person because the assault refers to infringing the privacy of a person. the act is referred to an assault when the action claims the threat to the other person of being harmed or may cause death.

Essentials

For an act to be said as assault, following essentials must be fulfilled-

1. The act must be threatening.
2. No physical touch required because as soon as physical contact is done, assault turns into battery.
3. The act must be accompanied with gestures or things that are essential for instilling threat.
4. Mere words do not amount to assault, the words must include the threat and gestures too.

Illustrations

1. B shows a sword to C and says that he was thinking of sharpening it for using it in future. This would not amount to assault as there was no direct intention to use it against C.
2. A show a gun points and that he would use it against D id he did not bring him 10,000 the next day. This will amount to assault as A directly said that he would use the gun to shoot D.
3. P says to R that “I will bang his head on the wall and will repeat it until he dies”, while saying this he was in anger and also was showing his fist to R. this amounts to assault.
4. F and G are good friends. F says while joking that he will slap him if does not take his medicines. This will not amount to assault.

Case Laws

Stephens V Myers^[1]– the plaintiff was the chairman of a parish meeting and he ordered the respondent to leave the room. The respondent said that he would rather pull the chairman out of chair. Along with this, he moved towards the plaintiff with his fist clenched towards him. The church warden stopped him. It was held as an assault as there was an immediate threat to the chairman and would have changed into battery if the church warden wouldn’t have stopped him.

Read v. Coke^[2]– the plaintiff was told to leave the premises of occupation. The plaintiff when refused to do so, the respondent along with some workers started moving towards him and all were folding their sleeves showing gestures to beat the plaintiff. It was held that the respondent and his workers were guilty of assault.

Therefore, in the cases where there the plaintiff feels threatened, the respondents can be held guilty for assault.

^[1](1830) 4 C & P349 : 34 RR 811.

^[2] 138 ER 1437.

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Saheli, A Women’s Resources Centre v. Commissioner of Police (1990) 1 SCC 422

Facts 

The petitioner filed a Public Interest Litigation on behalf of Kamlesh Kumari and Maya Devi. The two women lived in the same house in different rooms with their husbands and children. Their husbands were not usually at home as they were truck drivers. During their time in the house there were two changes in ownership. Puran Chand, and his sons Shambu Dayal and Prakash Chand, being the third in the line of owners, who claimed to have purchased the house. They had been successful at illegally evicting the tenants of the house but Kamlesh and Maya did not leave. Kamlesh got a stay order against her forceful eviction from a Court and continued to live there. In October 1987, the so-called landlord cut off water and electricity. On 2^nd, 4^th and 12^th November 1987, the Station House Officer of Anand Parbat Police Station, Lal Singh called Kamlesh Kumari and warned her to leave the premises. On 13^th November, the Sub Inspector of Anand Parbat Police Station threw out Maya Devi from the house and took away Kamlesh Kumari’s children while she had gone to consult with her lawyer. Her children had been put in lock up. With her lawyer’s help, she was able to get them out. The same day, at night, Kamlesh was attacked by Shambu Dayal. On 14^th November, Shambu Dayal, Prakash Chand, Lal Singh (in civilian clothes) and Sham Lal (sub inspector in uniform) beat Kamlesh, tore off her clothes and molested her. Her son Naresh had clung to his mother, but Lal Singh threw him on the floor, and he got injured. 

Kamlesh was dragged to the police station and a criminal case of trespass was imposed on her, after which she was sent to Tihar Jail. After she was released, Naresh soon died due to his injuries and the fever and pneumonitis those injuries had caused. The report submitted by Puran Singh, Inspector, Crime Branch Delhi stated that the whole incident was a high-level conspiracy to get the tenants out of the house. 

The instant writ petitions were moved to the Supreme Court. The writ demanded exemplary damages for the death of Naresh. 

Issues

• Whether the Delhi Administration can be held vicariously liable for the tortious acts of the Delhi Police.

Judgement

The bench, Justice B.C. Ray and Justice Ratnavel Pandian, found that it is settled law that the State is responsible for the tortious acts of its employees. Thus, the Delhi Administration was responsible for the tort committed by the S.H.O, Lal Singh. This verdict concurred with the opinion given in Joginder Kaur v. Punjab State (1969 ACJ 28) and State of Rajasthan v. Vidhyawati (1962 Supp (2) SCR 989) where the Court said that State must be held vicariously liable for the wrongful acts of its employees and must pay damages. The Court also pointed out the verdict in People’s Union of Democratic Rights v. Police Commissioner, Delhi Headquarters; where the Court gave the family of a laborer, who was beaten at the hands of Delhi Police officers, compensation worth Rs 50,000. 

The Court awarded Kamlesh Kumari an amount of Rs. 75,000 which had to be paid by the Delhi Administration for battery, assault, false imprisonment, physical injuries, and death. The Court said that the damages for assault, battery and false imprisonment are largely for the mental pain, distress, indignity, loss of liberty and death. The Delhi Administration was also allowed to recover the cost of the damages from the officers found responsible. Since the police officers were not there before the bench, the Court ordered that no observation in the case can be used for the criminal case against the officers. 

This case shows that although administrative and, law and order functionaries may fail to do their duties and at time outright abuse their power, the Courts will take notice of the same and provide the necessary relief for those that have suffered. 

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