Discharge of Liability
The following are the modes through which liability in Torts can be discharged –
- Death of a party – “Actio personalis maritur cum persona” means the Personal actions of a person die with the person. But not always. In several cases, the cause of action remains valid even after death of wrongdoer. For example, Workers’ Compensation Act, Fatal Accidents Act, etc.
- Acquiescence – If the party whose right is being violated does not protest and allows the transgression to happen without any restriction.
- Waiver – If the plaintiff starts proceedings for one remedy, for example, a Civil suit, he cannot file another suit under another remedy such as Tortios Suit for the same cause.
- Release – If the plaintiff voluntarily releases the wrongdoer from liability. In England, consideration is a must. In India, no consideration is required.
- Accord and Satisfaction – If the parties compromise and settle the dispute.
- Judgement Recovered – “res judicata” – upon the damages awarded by the court.
- Statute of limitation – A suit must be filed within the time frame provided by statutes of limitations.
Q. Explain various Judicial remedies that are available to a plaintiff in an action of tort. Are there any extra-judicial remedies too? If so, enumerate them. What are the general types of damages available in cases of Torts? Explain with examples. What is the doctrine of the remoteness of damages? Discuss the law on this point.
Judicial Remedies –
- Damages – It is the most important remedy of all.
- Nominal Damages – In cases of Injuria Sine Damnum (Ashby vs White)
- Contemptuous Damages – When the plaintiff has suffered a wrong but does not deserve compensation. For example, if the reason for the battery was the plaintiff’s offensive remarks, the judge may think that the plaintiff does not deserve compensation.
- Compensatory, Aggravated, and Exemplary Damages
- Prospective Damages – Compensation for damages that haven’t yet happened but are likely to happen because of the defendant’s tortious action.
- Injunctions – An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of damages is a sufficient relief, an injunction may not be granted. It includes temporary and permanent injunctions.
- Specific restitution of Property
Extra Judicial Remedies
Besides going to the court for justice, a person, in certain situations, can also have recourse to remedies without going to any court. Such remedies are called extra-judicial remedies and are availed by a person by his own strength as self-help. These are –
- Removal of a trespasser – A person is entitled to remove the trespasser by force.
- Recaption of chattels (personal belongings) – A person is entitled to take possession of his goods by force.
- Abatement of a nuisance – An occupier of land is permitted to abate any nuisance that is affecting his land.
- Distress Damage feasant – A person has the right to seize goods or cattle that have strayed on his land until compensation is paid.
Remoteness of Damage
The law allows only those losses which are not too ‘remote’. There are two main tests of remoteness which are applied in tort, namely direct consequences and reasonably foreseeable consequences.
Direct Consequence – Provided some damage is foreseeable, liability lies for all the natural and direct consequences flowing from the breach of duty. In Re Polemis [1921] 3 KB 560 (CA), stevedores, who were servants of the defendant, negligently let fall a plank into a ship’s hold containing petrol in metal containers. The impact of the plank as it hit the floor of the hold caused a spark, and petrol vapour was ignited. The ship was destroyed. Arbitrators found that the spark could not have been reasonably foreseen, though some damage was foreseeable from the impact. The defendant was found liable because the claimant’s loss was a direct, though not reasonably foreseeable, result.
Reasonable Foreseeability – In The Wagon Mound (No. 1) [1961] AC 388, the defendant carelessly discharged oil from a ship in Sydney Harbour, and the oil floated on the surface of the water towards the claimant’s
wharf. The claimant’s servants, who were welding on the wharf, continued their work after being advised (non-negligently) that it was safe to do so. Sparks from the welding equipment first all ignited cotton waste mixed up in the oil; then the oil itself caught fire. The claimant sued for the destruction of the wharf by fire. The defendant was found not liable in negligence because it was not reasonably foreseeable that the oil might ignite on the water in these circumstances. Damage by fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy Council said that in the tort of negligence Re Polemiswas no longer good law, and liability
would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.
Keywords: Discharge of Liability, Discharge of Liability in India, Discharge of Liability in Torts.
Click here to read Law of Torts.
Click here to read IPC 1860.
Click here to read the Constitution of India.
