The torts for which an injunction is usually sought are a nuisance, continuing trespass, infringement of copyright, trademarks, and patents, and passing off one’s goods as those of another.
But the remedy of injunction is impossible in the torts of assault and battery, false imprisonment and malicious prosecution.
If an injunction is disobeyed by any person he may be proceeded against for contempt of court and punished by imprisonment and attachment of his property.
Specific restitution
Under this form of remedy the injured party is entitled to recover the specific item of property itself the wrongdoer.
Thus he who is wrongfully dispossessed of his land is entitled to recover, not the value of the land as damages, but the land itself: and a judgment in his favour by force, if need be.
So in the case of chattels wrongfully taken or detained, the owner has the option of claiming either their value as damages or specific restitution of possession.
Tart remedies under public law
Public law remedies have also been extended by the Supreme Court to the realm of tort. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of public servants.
In Sharma v. State of A.P. the State Government was directed to pay ₹ 3,00,000 by way of compensation. The petitioner was admitted in a government hospital for her third delivery.
In the course of the Caesarean operation, the petitioner received serious injuries in her abdomen. She had to undergo further two operations and a cotton (mop) was removed from her abdomen.
The State Government was also directed to provide all necessary medical care to her until she was perfectly cured.
Damages
Damage and damages: Real and nominal damages
Damage is actual injury or loss. Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. Damages recoverable in a tortious action may be either nominal or real.
Nominal damages are a small sum of money awarded by way of recognition of the existence of some legal right vested in the plaintiff and the violation of it by the defendant.
Real damages are those which are assessed and awarded as compensation for damage actually suffered by the plaintiff. All cases of injuria sine damno fall under this head. For trespass and other torts which are actionable per se nominal damage will at least be awarded.
In fixing the sum to be given as damages the court should get at that sum of money which will put the party who has been injured in the same position as he would have been in if he had not sustained the wrong for which he is getting compensation, known as the doctrine of restitutio in integrum.
If A has damaged by his negligent driving B’s Morris car, which cost B ₹ 50,000, A will be compelled to pay ₹ 50,000 or less the value of depreciation so as to enable B to purchase another car of the same type and model.
But in many cases the amount of compensation granted by the court will not be exactly the same as required to replace the plaintiff’ loss. The court may award the plaintiff an amount which it thinks is a fair and adequate compensation for the plaintiff’s injury.
In such cases it is purely compensation and not restitution. In other exceptional cases such as the loss of a historic mansion or an ancient portrait by the negligent acts of the defendants, the loss could not be measured by the value of the bricks of the mansion or of the colour and canvas of the portrait.
In such cases courts will grant a much more higher sum than that represented by the value of the materials to compensation the plaintiff.
Measure of damages
A claimant cannot recover more by way of damages than the amount of his loss. The object of an award of damages is to place the injured party as nearly as possible in the same financial position as he would have been in but for the injury.
It has been held in two English decisions that when assessing damages in actions for personal injuries or wrongful dismissal, for the loss of actual or prospective earnings, allowance must be made for any incidence of income tax (including surtax). It was so held by the House of Lords in British Transport Commission v. Gourley.
