TORT LAW
4 – Remedies
Tort c5
Special liability regimes: specific rules for establishing liability but same remedies as general negligence
- employers’ liability, occupiers’ liability and liability for defective products
Torts re: interference with land: may be appropriate for claimant to seek damages to compensate for the
interference, but may also want remedy of injunction
- trespass to land and nuisance
General Principles
Compensatory & nominal damages
Where tort is actionable per se: claimant does not need to prove any actual damage/loss to establish claim
- award of compensatory damages not appropriate; claimant not suffered any actual damage
- instead: award of nominal damages for token amount of money; not compensation for losses suffered but
establishment of legal rights
o claimants who recover nominal damages will usually also be awarded costs of bringing the claim;
not substantially out of pocket due to bringing the claim
The measure of damages
Aim of damages = claimant should be put back in same position as prior to wrongdoing having been committed
- easier to quantify for certain situations (e.g. damaged bike)
- personal injuries – payment of damages would not restore claimant to previous position; damages received
seen as compensation for injury
Mitigation of loss
No worse or better off – claimant should not profit!
- claimants cannot claim damages for losses they could have avoided with reasonable steps; duty to mitigate;
must take all reasonable steps to keep losses claimed to a minimum
o e.g. if lost job should find another; should not unreasonably refuse medical treatment
The one action rule
Claimant can bring only one claim based on one set of facts:
- court must award single lump sum to cover both losses already suffered up to the time of trial and losses
claimant is expected to suffer in the future
- once award has been made, claimant cannot go back to court with second claim because injury worsens; but
often not possible to accurately predict how will recover/what could have been!
Special damages: losses capable of being calculated precisely at time of trial; stated in form of calculation
- financial losses incurred before trial (e.g. loss of earnings)
- inc. some pecuniary losses
General damages: losses not capable of being calculated precisely and are left to court to determine; must be
stated but no definitive figure can be placed on them
- (e.g. pain, suffering, loss of amenity and all losses incurred after trial)
- inc. all non-pecuniary losses & some pecuniary losses
, TORT LAW
4 – Remedies
Tort c5
Damages: Personal Injury
Two categories of damages:
- Pecuniary losses: capable of mathematical calculation in money terms (suffered either pre- or post-trial)
o e.g. loss of earnings & medical expenses
- Non-pecuniary losses: not capable of being calculated in money terms
o e.g. personal injury
Non-pecuniary losses
Main example: personal injury -> claimant pain and suffering + ‘loss of amenity’ caused by injury
e.g. after breaking leg;
- injury suffered, medical treatment received, pain and suffering, drugs/prescriptions, continuing effects,
future effects, activities can no longer do/enjoy, any other detrimental effects?
Court assesses to reach monetary figure for compensation;
- generally just one figure containing both pain and suffering, and loss of amenity
1) Pain and suffering:
Aims to compensate pain and suffering claimant incurred as a result of the injury;
- inc. past, present & future pain, physical & mental anguish, fear of future surgery etc
o also inc. claimant’s anguish of knowing life expectancy has been shortened because of accident
(Administration of Justice Act 1982, s.1(1)(b))
Wise v Kaye [1962]; subjective test
- claimant must be aware of injuries to claim for pain and suffering
- would not recover damages for unconscious period; not aware of it! (but still loss of amenity)
2) Loss of amenity:
Aims to compensate claimant for loss of the enjoyment of life
- inc. loss of freedom of movement, sight, smell, marriage prospects, inability to pursue hobbies etc
- claimant who was very active prior to accident will receive more than one who was inactive
West v Shephard [1964]; objective test
- claimant able to recover whether conscious or not
3) Quantification
No easy way to assess value of limb loss etc; means different things to different people based on age, sex,
hobbies etc; courts must consider individual facts of each case
Must find cases most similar to one under consideration; rough guide to amount of damages recoverable for
non-pecuniary damages; general damages as cannot be calculated precisely!
- Judicial College Guidelines for the Assessment of General Damages to Personal Injury Cases
- Kemp on Damages (practitioner text containing cases where damages awarded)
Pecuniary losses
e.g. after breaking leg;
- absent from work so lost wages/received sick pay, medical expenses (& prescription costs), other expenses
(travel costs, nursing care, special equipment), how long expenses continue?
4 – Remedies
Tort c5
Special liability regimes: specific rules for establishing liability but same remedies as general negligence
- employers’ liability, occupiers’ liability and liability for defective products
Torts re: interference with land: may be appropriate for claimant to seek damages to compensate for the
interference, but may also want remedy of injunction
- trespass to land and nuisance
General Principles
Compensatory & nominal damages
Where tort is actionable per se: claimant does not need to prove any actual damage/loss to establish claim
- award of compensatory damages not appropriate; claimant not suffered any actual damage
- instead: award of nominal damages for token amount of money; not compensation for losses suffered but
establishment of legal rights
o claimants who recover nominal damages will usually also be awarded costs of bringing the claim;
not substantially out of pocket due to bringing the claim
The measure of damages
Aim of damages = claimant should be put back in same position as prior to wrongdoing having been committed
- easier to quantify for certain situations (e.g. damaged bike)
- personal injuries – payment of damages would not restore claimant to previous position; damages received
seen as compensation for injury
Mitigation of loss
No worse or better off – claimant should not profit!
- claimants cannot claim damages for losses they could have avoided with reasonable steps; duty to mitigate;
must take all reasonable steps to keep losses claimed to a minimum
o e.g. if lost job should find another; should not unreasonably refuse medical treatment
The one action rule
Claimant can bring only one claim based on one set of facts:
- court must award single lump sum to cover both losses already suffered up to the time of trial and losses
claimant is expected to suffer in the future
- once award has been made, claimant cannot go back to court with second claim because injury worsens; but
often not possible to accurately predict how will recover/what could have been!
Special damages: losses capable of being calculated precisely at time of trial; stated in form of calculation
- financial losses incurred before trial (e.g. loss of earnings)
- inc. some pecuniary losses
General damages: losses not capable of being calculated precisely and are left to court to determine; must be
stated but no definitive figure can be placed on them
- (e.g. pain, suffering, loss of amenity and all losses incurred after trial)
- inc. all non-pecuniary losses & some pecuniary losses
, TORT LAW
4 – Remedies
Tort c5
Damages: Personal Injury
Two categories of damages:
- Pecuniary losses: capable of mathematical calculation in money terms (suffered either pre- or post-trial)
o e.g. loss of earnings & medical expenses
- Non-pecuniary losses: not capable of being calculated in money terms
o e.g. personal injury
Non-pecuniary losses
Main example: personal injury -> claimant pain and suffering + ‘loss of amenity’ caused by injury
e.g. after breaking leg;
- injury suffered, medical treatment received, pain and suffering, drugs/prescriptions, continuing effects,
future effects, activities can no longer do/enjoy, any other detrimental effects?
Court assesses to reach monetary figure for compensation;
- generally just one figure containing both pain and suffering, and loss of amenity
1) Pain and suffering:
Aims to compensate pain and suffering claimant incurred as a result of the injury;
- inc. past, present & future pain, physical & mental anguish, fear of future surgery etc
o also inc. claimant’s anguish of knowing life expectancy has been shortened because of accident
(Administration of Justice Act 1982, s.1(1)(b))
Wise v Kaye [1962]; subjective test
- claimant must be aware of injuries to claim for pain and suffering
- would not recover damages for unconscious period; not aware of it! (but still loss of amenity)
2) Loss of amenity:
Aims to compensate claimant for loss of the enjoyment of life
- inc. loss of freedom of movement, sight, smell, marriage prospects, inability to pursue hobbies etc
- claimant who was very active prior to accident will receive more than one who was inactive
West v Shephard [1964]; objective test
- claimant able to recover whether conscious or not
3) Quantification
No easy way to assess value of limb loss etc; means different things to different people based on age, sex,
hobbies etc; courts must consider individual facts of each case
Must find cases most similar to one under consideration; rough guide to amount of damages recoverable for
non-pecuniary damages; general damages as cannot be calculated precisely!
- Judicial College Guidelines for the Assessment of General Damages to Personal Injury Cases
- Kemp on Damages (practitioner text containing cases where damages awarded)
Pecuniary losses
e.g. after breaking leg;
- absent from work so lost wages/received sick pay, medical expenses (& prescription costs), other expenses
(travel costs, nursing care, special equipment), how long expenses continue?
