TORTOUS REMEDIES As defined in Blacks Law Dictionary, a remedy is the means by which a right is enforced or the violation of a right

is prevented, redressed, or compensated. Concept of remedies in the law of torts is verbalized from the maxim ubi jus ibi remedium, which means there is no wrong without a remedy. In the case of Ashby v. White (1703) Justice Holt remarked, If a man has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal. In Brad laugh v. Gossett, (1884), the explanation was slightly modified to give it a better stance by observing, Where there is no legal remedy, there is no legal wrong. The following are the types of remedies developed over a period of time: The distinction between the equitable and legal damages is very important even as it is losing significance in the present world. In simple terms, legal remedies are available in law courts and the equitable remedies are available in the equity courts. Remedies in law are mostly available in equity and as the time progressed, many equity principles were adopted by the courts. The importance is also to be kept in mind because some remedies are available only in one side and not the other side.

1. DAMAGES A. Compensatory Damages: Plaintiff is entitled to compensatory damages to put her in the position she would have been had the wrong not occurred. This kind of damages is awarded when the plaintiff actually has sustained loss and it should be make good by the defendant. This is actually making good the loss suffered by the plaintiff. Must show: a. Causation: That the cause has directly result in the damage for which she is claiming damages. b. Foreseeability: The injury must been foreseeable at the time of the tortuous act. All the plaintiff needs to ensure is that the claim which he/she is reasonable. 1

c. Certainty: The damages cannot be too speculative. i. Applies to economic losses (special damages), but not non-economic damages which include general pain, suffering, disfigurement etc.) ii. All or Nothing Rule: For future damages, plaintiff must show that they are more likely to happen than not. d. Unavoidability: The complainant must take reasonable steps to mitigate the damage. e. Calculation: The damages are calculated in a single lump sum payment discounted to present value forgetting inflation. B. Nominal Damages: Where the plaintiff has no actual injury, the court may award nominal damages to serve to establish or to vindicate the plaintiffs rights. These are awarded in cases where there is infringement of legal right on part of the plaintiff, but has suffered no loss as a consequence thereof. Cases of injuria sine damno come under this classification.

C. Exemplary damages or Punitive Damages: These are the ones awarded to compensate the plaintiff and also to punish the wrong doer and discourage him from repeating the same offence. Exemplary costs are imposed on the wrong doer to set as an example not to repeat the offence again. Where the plaintiffs injury results from willful, wanton, or malicious conduct on the part of the defendant, the court may award punitive damages to punish the defendant. a. Plaintiff must first have been awarded compensatory, nominal, or restituionary damages. b. Calculation: It must be proportional to the actual damages. D. Contemptuous damages: These are awarded when the court is of the opinion that a particular action should never have been done. The damages awarded are nominal in these cases. Contemptuous damages are the mirror image of nominal damages. E. General damages: General damages is a kind of damages that is supposed to flow from torts which are actionable per se and need not be specifically proved in the court of law. For instance, loss of reputation in a libel claim. Inexact or the damages which are not liquidated are awarded by way of general damages.

F. Specific Damages: Special damage refers to the damage that a plaintiff must prove as part of his cause of action in torts where damage is the gist of the action as in cases of negligence, nuisance, slander etc. and loses which are capable of being estimated with reasonable accuracy are known as special damages. II. RESTITUIONARY REMEDIES A. Restitutionary Damages: Where the defendant has been unjustly enriched, the court may award damages based on the benefit to the defendant. Restitution is an equitable remedy whereby a party must return something to its rightful owner. This involves the principle of unjust enrichment. a. The amount is calculated based on the value of the benefit. Where a party wants a declaration of his/ her rights under a contract but does not want to seek enforcement of the contract, the court may issue a declaratory judgment setting forth the relative rights and obligations of the parties. b. But, where both compensatory and restituionary damages are available, plaintiff cannot get both. Instead, she must make a choice of the two. Generally, the plaintiff is awarded the larger sum of the two. B. Replevin: this remedy is also based on the lines of equity. This remedy of replevin requires a party to restore the goods that are wrongfully in his/ her possession. Rescission is only available as remedy when the parties are returned to the status quo, which implies that they can be returned to exact position they occupied before the contract was entered into. Otherwise, damages are the appropriate remedy. For example, they may recover property which was stolen. In a case for replevin, the plaintiff can recover possession of specific personal property for which he must show that: (i) (ii) (iii) (iv) He has a right of possession That it is in wrongful possession As long as it is in the possession of the other party, the chattel can be recovered. These damages are given along with the compensation for the lost use of benefit during unlawful possession. 3

C. Ejectment: Through this remedy, the court ejects a person who is wrongfully staying on a property owned by the plaintiff (true owner). In an action for ejectment, the plaintiff may recover possession of specific real property. This is common in instances of continuing trespass. For this damages he must show that (1) P has a right to possession (2) There is a wrongful withhold by D. (3) Usually coupled with damages for lost use of the benefit during the wrongful withholding. D. Constructive Trust: Equitable remedy is imposed by the courts when the retention of property by the offender or wrongdoer would result in unjust enrichment. The offender is like a trustee and must return the property to the plaintiff. a. Supposing the defendant is insolvent or the property is unique, then there are no legal remedies available to the plaintiff. Hence, it is in this situation that this remedy is resorted to. b. The plaintiff can follow and trace the property to whatever form it takes as long as it can be identified. c. Bona fide purchasers who purchase from the offender prevails over the plaintiff. d. Lastly, the plaintiff prevails over unsecured creditors. E. Equitable Lien: the court sometimes may award specific performance when the damages are insufficient because something about the contract is unique. Where the defendant has improperly acquired title to a property, an equitable lien allows the court to order an immediate sale of the property, and the monies received will go to the plaintiff. The following are the features of this claim: a. Must show that the defendant misappropriated Plaintiffs property creating a debt or obligation to pay b. That the complainants property can be traced to the property held by the offender c. That the retention led to unjust enrichment. d. If the proceeds from the sale are less than the present market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against the offenders other assets.

e. Where misappropriated money is used to improve property, only an equitable lien is available. f. Same rules as constructive trusts are available i.e. tracing etc.

I. INJUNCTIVE RELIEF A. Temporary Injunctive Relief: It is an injunction by which a court orders a person to do or cease doing a specific action. Temporary restraining orders and preliminary injunction are the forms of temporary injunctions which are granted. They are issued at the initial stage before giving the order to maintain the status quo and to prevent the offender from becoming insolvent or to stop him from continuing his illegal activity or harmful actions. However, the discretionary power, whether to grant a temporary relief, is with the court. To recover the compensation under temporary injunction relief, the Plaintiff must meet a twopart test. For passing that test, the following must be proved: (a) That without the injunction, he/she is in the zone of danger and that she will incur irreparable damage while waiting for the compensation. For this a balancing test is done by the court which involves comparing the plaintiffs harm if injunction is denied to the plaintiff and the harm to the defendant if the injunction is granted. (b) Also, the plaintiff must show that he/she must have a strong likelihood of success on the merits. B. Preliminary Injunctive Relief: It is regarded as an extraordinary relief. A preliminary injunction is regarded as extraordinary relief. The party against whom it is sought must receive notice and an opportunity to appear at a hearing to argue that the injunction should not be granted. A preliminary injunction should be granted only when the requesting party is highly likely to be successful in a trial on the merits and there is a substantial likelihood of irreparable harm unless the injunction is granted. If a party has shown only a limited probability of success, but has raised substantial and difficult questions worthy of additional

inquiry, a court will grant a preliminary injunction only if the harm to him or her outweighs the injury to others if the injunction is denied. C. Permanent Injunctive Relief: Permanent injunctions are issued as a final judgment in a case. It is a final decree of a court that an offender or an entity refrains from certain activities permanently or to take actions until the harmful activity is stopped. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or petition asking for the "permanent" injunction. It is a type of order issued by a court after a full trial on the merits of a case is conducted. A court may also give an injunction for the purpose of compelling a party to perform in a particular way. They occur more in civil cases than in criminal cases. It is also an equitable remedy. To get the relief, a person has to fulfill the five point test must be satisfied. According to the Ohio Supreme Court1, the five part test requires: (1) Pending or probable litigation involving plaintiff (2) Knowledge on the part of the defendant that litigation exists or is probable (3) Willful destruction of the evidence by defendant designed to disrupt the plaintiff's case (4) Disruption of the plaintiff's case (5) Damages proximately caused by the defendant's acts. Tort law is concerned with corrective justice which seeks to rectify wrongs. This at last involves shifting the deleterious effect from the plaintiff to the defendant by the way of paying damages. But, in the meantime, judiciary must take into account the public interest and this to a situation where in the plaintiff does not receive the complete damages or in sometimes no compensation. Sometimes, the courts may find that they do not owe duty of care to the individuals who suffer as a result of an act or an omission. Torts is also concerned with distributive justice who relates to distributing the cost of the harm as broadly as possible across society.

Smith v. Howard Johnson Co. St. 3d 28, 615 N.E. 2d 1037 (1993)