A victim of a tort may have several possible remedies available under tort laws. There are three basic types of remedies in tort law: Legal Remedies (“damages”), Restitutionary Remedies, and Equitable Remedies. Each of these is discussed briefly below:
- Legal Remedies for Torts: Also known as “damages”, these are monetary payments made by the defendant for the purpose of compensating the victim for their injuries, losses, and pain/suffering. These are calculated according to the victim’s losses rather than the tortfeasor’s gains. Punitive damages may be added in some types of tort claims. Claimants that win a judgment in court are awarded pain and suffering damages.
- Restitutionary Remedies: These are also meant to restore the plaintiff to a position of “wholeness”, as close as possible to their state before the tort occurred. These can include:
- Restitutionary damages: These are similar to damages, except that they are calculated based on the tortfeasor’s gain rather than the plaintiff’s losses.
- Replevin: Replevin allows the victim to recover personal property that they may have lost due to the tort. For example, they may recover property that was stolen. Replevin can be coupled with legal damages in some cases.
- Ejectment: This is where the court ejects a person who is wrongfully staying on real property owned by the plaintiff. This is common in instances of continuing trespass.
- Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on their real property, sell the property, and forward the proceeds to the tort victim.
- Equitable Remedies: These are available where monetary damages will not adequately restore the victim to wholeness. These can include:
- Temporary Restraining Order: Victims of physical harm or harassment may obtain a restraining order, which prevents the defendant from making contact with or coming near to the plaintiff.
- Temporary or Permanent Injunction: An injunction may either prohibit unlawful activity by the defendant or it may order them to take affirmative steps. Injunctions are common in trespassing and nuisance tort claims.
As in any lawsuit, the defendant may raise any available defenses to these types of remedies.
No- a large part of any tort lawsuit is set side for deciding which type of remedy is appropriate for the victim. Generally speaking, restitutionary and equitable remedies are not available if legal damages will be claimed by the plaintiff. That is, if a monetary payment will make the plaintiff “whole”, then there is no need for a court to issue restitutionary or equitable remedies.
On the other hand, a judge may sometimes issue a combination of different remedies so long as it is allowed by the laws of their jurisdiction. Or, they may combine remedies while placing a cap or limit on one of the options. A common combination of remedies is replevin coupled with legal damages.
For example in a conversion (theft) case, the judge may order replevin so that the plaintiff can get their stolen property back. On top of this, the judge will typically order the defendant to pay compensatory damages for the time that the plaintiff was not able to use the property. This is especially common in cases where the stolen property is equipment or machinery that the plaintiff uses to generate their income. The defendant may then have to pay damages to compensate the plaintiff for lost wages.
Tort remedies should be chosen in a way that maximizes compensation for the victim. A personal injury lawyer can help determine which type of remedy would best compensate a tort victim for their losses or injuries. If you suffered losses from a tort, you may wish to hire a lawyer to advise you on the various types of remedies available in your jurisdiction.