Remedies in tort | Lanbuk on the Law of Torts

In simple terms

Once a is proved, the court must decide what the claimant gets. The main remedy is damages: money to put the claimant back where he would have been. The court may also order the to stop (or do) something, by an . In some cases the claimant may help himself, for example by removing a .

Damages: the basic aim

Damages in tort aim to put the claimant, as far as money can, in the position he would have been in if the tort had not happened: Livingstone v Rawyards Coal. This is called restitutio in integrum.

Kinds of damages

Nominal damages: A small sum to mark that a right was infringed where there is no real loss, common in .

Contemptuous damages: A tiny sum, where the court thinks the claim, though technically won, should not have been brought.

Compensatory damages: Compensation for loss. cover losses not precisely calculable, such as pain and suffering. cover exact money losses up to trial, such as medical bills and lost wages; these must be specifically pleaded and proved.

Aggravated damages: Extra compensation where the defendant's conduct, such as arrogance or insult, increased the claimant's hurt.

Exemplary damages: Damages to punish, beyond compensation. Under Rookes v Barnard they are allowed only for oppressive, arbitrary or unconstitutional acts by government servants, for conduct calculated to make a profit, or where statute allows. Cassell & Co v Broome confirmed these limits.

Personal injury damages

Pecuniary loss includes lost earnings (past and future) and medical and care costs. Lost earnings are measured after tax: British Transport Commission v Gourley.

Non-pecuniary loss covers pain and suffering and loss of amenity (loss of the ability to enjoy life). Loss of amenity is assessed objectively, even for a claimant who is unconscious: H West & Son v Shephard.

Limits on damages

The damage must be caused by the tort and not be (see The Wagon Mound (No 1)). The claimant must take reasonable steps to reduce his loss (), and may reduce the award.

Injunctions

An injunction is a court order. A prohibitory injunction orders the defendant to stop doing something; a mandatory injunction orders him to do something, such as removing a wall. It is an equitable remedy, so the court has discretion and may refuse it, for example where the claimant delayed or acted unfairly.

Interim injunctions: Granted before trial to hold the position. The court asks whether there is a serious question to be tried, whether damages would be an adequate remedy, and where the balance of convenience lies: American Cyanamid v Ethicon.

Mandatory and quia timet injunctions: Granted only where there is a strong probability of grave damage and the order is clear: Redland Bricks v Morris.

Damages instead of an injunction: The court may award damages instead of an injunction. Traditionally this was where the harm was small, measurable in money and an injunction would be oppressive: Shelfer v City of London Electric Lighting. Modern courts are more flexible: Coventry v Lawrence.

Self-help

The law allows some self-help: removing a with reasonable force, abating a nuisance, taking back goods (recaption) and self-defence. Self-help must be reasonable and peaceful, and courts treat it with caution.

Memory map

Remedies in tort

Damages aim

Restore position (Livingstone)

Kinds

Nominal
Contemptuous
General and special
Aggravated
Exemplary (Rookes v Barnard)

Personal injury

Lost earnings after tax (Gourley)
Pain, suffering, amenity (West v Shephard)

Limits

Causation and remoteness
Mitigation
Contributory negligence

Injunctions

Prohibitory, mandatory
Interim (American Cyanamid)
Mandatory: strong probability (Redland)
Damages in lieu (Shelfer)

Self-help

Ejection
Abatement
Recaption

Words and Latin in this note

Contributory: A present or past member who may be liable to contribute to a company's assets in a winding up. In a company limited by shares the liability is limited to any amount unpaid on the shares. Open the note.
Nuisance: Unreasonable interference with a person's use or enjoyment of land (private nuisance) or with the rights of the public (public nuisance). Open the note.

Take-home points

Damages aim to restore the claimant to the position before the tort (Livingstone v Rawyards Coal).
Special damages must be pleaded and proved; general damages are assessed by the court.
Exemplary damages are limited to the Rookes v Barnard categories.
Injunctions are discretionary; interim injunctions follow the American Cyanamid test.
Damages may be awarded instead of an injunction (Shelfer; Coventry v Lawrence).
Self-help must be reasonable.