C8: Remedies

Question 1

For tort law, what are the two types of remedies?

Answer 1

Damages: a common law remedy
Injunction: a equitable remedy

Question 2

What are the most common types of damages?

Answer 2

Compensatory damages

Question 3

What are compensatory damages?

Answer 3

Compensatory damages shift the burden of loss that has been suffered to the defendant, whose negligence caused that loss to be suffered. They put the injured party in the position they would have been in if the tort had not occurred.

Question 4

What does an injunction do?

Answer 4

An injunction orders the defendant to do/stop doing something and that remedy operates directly to prevent the tortious behaviour.

Question 5

What is the ‘quantum’?

Answer 5

The amount of damages awarded is the quantum.

Question 6

Explain the difference between general and special damages.

Answer 6

Special damages: Losses which can be precisely quantified at the date of trial
General damages: Losses which cannot be precisely quantified at the date of the trial.

Question 7

There are two categories of general damages: pecuniary and non-pecuniary. Give an example of each.

Answer 7

Pecuniary damages are ones that have a monetary value. E.g. loss of earnings
Non-pecuniary damages are ones that do not have a monetary value. E.g. loss of amenity/enjoyment.

Question 8

Note two ways in which a claimant who has suffered personal injury is expected to mitigate their loss.

Answer 8

1. They must obtain all proper and recommended medical treatment, so not to prevent their recovery.
2. If they are unable to work in their original role, they must be prepared to accept reasonable alternative work.

Question 9

Can a person be compensated twice for the same loss?

Answer 9

No, they cannot.

Question 10

Can a defendant profit from their wrongdoing?

Answer 10

No they cannot.

Question 11

If a successful claimant is entitled to any social security benefits, what must the defendant do? Which piece of legislation rules this situation?

Answer 11

The defendant must repay the social security benefits and they will be deducted from the damages paid to the claimant. This is from the Social Security Administration Act 1992. (A person cannot be compensated twice for the same loss.)

Question 12

Which piece of legislation provides for a revised scheme for the recovery of benefits paid in respect of an accident, injury or disease where the person claiming benefit also receives compensation from a third party?

Answer 12

The Social Security (Recovery of Benefits) Act 1977.

Question 13

What are special damages?

Answer 13

Special damages are for quantifiable financial losses which the claimant can prove were incurred as a consequence of the tort and before the trial, e.g. pre-trial loss of earnings.

Question 14

What are some examples of special damages?

Answer 14

• transport costs to and from hospital;
• private medical treatment until the date of trial – everyone injured as a result of a tort has the right to opt for private medical treatment;
• loss of claimant’s net earnings for the time from the tort to the date of the trial (NB loss of future earnings is included in general damages because it cannot be precisely quantified);
• financial losses, such as loss of earnings, incurred by a friend or relative acting as a carer for the claimant;
• special equipment, such as a stair-lift or adaptations to a car, that were necessary because of the claimant’s injuries;
• the cost of repairing or replacing items (such as clothing) that were destroyed or damaged by the tort; and
• any insurance excess that was paid by the claimant – car insurance policies usually require the policy-holder to pay the first, say, £300 of every claim.

Question 15

What are general damages?

Answer 15

General damages are those that are not capable of precise calculation at the date of the trial. General damages cannot be precisely calculated, either because they arise after the trial (e.g. future loss of earnings) or because the loss cannot be easily quantified in monetary terms (i.e. non-pecuniary loss), for example, pain, suffering and loss of amenity.

Question 16

What ‘head of damage’ do general damages come under?

Answer 16

PSLA - Pain, suffering and loss of amentity.

Question 17

In PSLA, what does pain and suffering include?

Answer 17

This includes physical pain, recognised psychological injuries and distress caused, for example, by the knowledge that the claimant’s life expectancy has been reduced, but not for general anxiety. A person who is permanently unconscious or who cannot feel pain will not receive any damages under this head.

Question 18

In PSLA, what does loss of amenity include?

Answer 18

This sum includes loss of enjoyment of holidays, impaired sex life, inability to play with one’s children, etc. It is objective in that it is awarded even in respect of a person who is permanently unconscious and cannot understand their predicament, but some elements are subjective within a specified range, so damages for a broken leg would be higher for a keen amateur footballer than for a person whose main hobby was needlework.

Question 19

Which two texts are important when working out awards of damages?

Answer 19

Judicial College Guidelines: categorises injuries by type and then by severity
Kemp & Kemp: gives more detailed accounts of recent awards

Question 20

When will the tort’s damages fall outside the range suggested by the guidelines?

Answer 20

In an extreme case, e.g. a marathon runner suffering a permanently mutilated knee

Question 21

How are ‘loss of earnings’ split up when assessing for damages?

Answer 21

It is split between the pre-trial loss of earnings and future loss of earnings. Pre-trial are easily quantifiable, thanks to pay-slips etc. Future loss of earnings cannot be quantified precisely.

Question 22

Does future loss of earnings fall in general or special damages?

Answer 22

General damages, because the loss cannot be precisely quantified at the date of the trial. Pre-trial losses are special damages, as they can be quantified.

Question 23

How are future loss of earnings calculated?

Answer 23

This is calculated based upon the claimant’s annual net income before the tort, adjusted to reflect future career prospects (the multiplicand) and a multiplier based upon their age.The multiplier reflects the number of years for which they could have been expected to continue to earn the income had they not suffered the injury.

Question 24

What is a multiplicand and a multiplier?

Answer 24

The multiplicand is the claimant’s annual net income before the tort, adjusted to reflect future career prospects and the multiplier reflects the number of years for which they could have been expected to continue to earn the income had they not suffered the injury.

Question 25

Why would the multiplier be considerably lower than the number of years from the claimant’s present age until their expected retirement?

Answer 25

Because of the fact that the award of damages in a single lump sum gives them the opportunity to increase their income via investments.

Question 26

Can the presumed rate of return to investments be varied and by who? Which piece of legislation supports this?

Answer 26

The presumed rate of return on investments can, by s1 Damages Act 1996, be varied by the Lord Chancellor, who must consult the Government Actuary and the Treasury. This enables awards to be adjusted to reflect prevailing economic circumstances.

Question 27

Is the cost of future care a general or special damage?

Answer 27

It is general damages, because it cannot be known precisely at the date of trial. If the injury has shortened the claimant’s expected life-span, they may claim for lost years – the sum awarded will be a reflection of the amount they would have expected to earn during those years, minus an allowance for the living expenses they would have been expected to incur during that time.

Question 28

What are the five types of damages?

Answer 28

Compensatory damages Nominal damages = awarded where the claimant has suffered no loss Contemptuous damages = claimant should not have brought the action at all Aggravated damages = where compensatory damages are not available/sufficient Exemplary damages = awarded to punish the defendant for their conduct

Question 29

What are exemplary damages?

Answer 29

Exemplary damages are awarded to punish the defendant for their conduct and to deter such behaviour in the future. They are awarded in addition to compensatory damages. The circumstances in which exemplary damages may be awarded are set out in the speech of Lord Devlin in Rookes v Barnard [1964]. Since the principle of punishing the defendant is inconsistent with the aims of the civil law of tort, such damages can be awarded only for certain torts and in very limited types of cases

Question 30

Identify the type of damages that will be awarded if the defendant has behaved particularly badly.

Answer 30

Where compensatory damages do not sufficiently reflect the manner in which the tort was committed, the court may make an award of aggravated damages. Commission of a tort in an insulting, malicious, insolent or high-handed way may warrant aggravated damages, particularly where little compensable physical or psychiatric damage has been suffered, or where the defendant committed the tort to make a profit. For example, in Appleton v Garrett [1996] the defendant dentist advised his patients that they needed significant dental work. The work was, in fact, unnecessary and was recommended for the financial benefit of the defendant. Aggravated damages are most frequently awarded in libel actions (e.g. John v Mirror Group Newspapers [1996]). The courts have been unwilling to award aggravated damages in relation to certain torts, such as nuisance and trespass. Exemplary damages are awarded to punish the defendant for their conduct and to deter such behaviour in the future. They are awarded in addition to compensatory damages. The circumstances in which exemplary damages may be awarded are set out in the speech of Lord Devlin in Rookes v Barnard [1964]. Since the principle of punishing the defendant is inconsistent with the aims of the civil law of tort, such damages can be awarded only for certain torts and in very limited types of cases

Question 31

How would contributory negligence affect damages?

Answer 31

Contributory negligence is a partial defence, so the award of damages will be reduced by a percentage amount, reflecting the level of contribution for which the court deems the claimant was partly responsible for their injuries. It should be emphasised that the question relates to how much the claimant contributed to their injuries/loss and not to the accident itself. Of course, if a claimant is partly responsible for the accident itself then substantive issues of causation arise if the claimant acted unreasonably.

Question 32

Explain the difference between a mandatory injunction and a prohibitory injunction.

Answer 32

A mandatory injunction means the defendant must do something and a prohibitory injunction means they must refrain from or stop doing something.

Question 33

Explain with reference to case law the situations in which a court may award damages instead of an injunction.

Answer 33

S50 Senior Courts Act 1981 gives the court the power to award damages instead of an injunction but this will only be done in certain limited situations that were identified in Shelfer v City of London Electric Lighting Co [1895]. All the conditions must be met: - the injury to the claimant is small and can be estimated in money; - a money payment would be adequate compensation for the claimant; and - it would be oppressive to the defendant to grant an injunction in the circumstances (Watson v Croft Promosport Ltd [2009]).

Question 34

What is the difference between final and interim injunctions?

Answer 34

Final injunctions are awarded at the end of the trial as one of the remedies obtained by the successful party. Interim injunctions are awarded before the trial of the action in order to prevent harm where damages alone wouldn't be an adequate remedy.

Question 35

What is a quia timet injunction?

Answer 35

An interim injunction, literally meaning ‘because he fears’. Precautionary, where a wrong is threatened but has not yet happened.

Question 36

What is meant by mitigation and betterment in relation to remedies?

Answer 36

Mitigation and betterment may reduce a claimant’s award of damages. Mitigation is where the claimant needs to mitigate the loss they sustained consequent upon the defendant’s wrong. E.g. have medical treatment, find a suitable job. Betterment is where the court will not replace property which is of a higher asset value than the one which was damaged. E.g. Voaden v Champion (vessell being lost, originally costing £60K, it was old and was only worth £16K.

Question 37

In betterment, what are the 4 propositions drawn out by Rix LJ in Voaden v Champion?

Answer 37

On appeal Rix L.J. went through the authorities and drew out the following propositions. (1) Unless the parties have agreed otherwise where there is damage to or destruction of a chattel the measure of loss should be the same whether it was caused by a breach of contract or tort. (2) It should be exceptional for a claimant to recover more than he has lost. Such exceptions include the repair of chattels where the betterment is nominal. (3) Where what has been destroyed is a second-hand chattel but there is no market for its replacement then the Court should “make a fact specific review of what the claimant has lost and then attempt to put a financial figure on it as best one can”. (4) When such a review is required the test of reasonableness has an important role to play. Applying the test of reasonableness to the facts of the case the Court of Appeal concluded that it would be “unfair and unreasonable” to award £60,000 and so upheld the judge’s finding.

Question 38

s1 Damages Act 1996

Answer 38

The presumed rate of return on investments can, by s1 Damages Act 1996, be varied by the Lord Chancellor, who must consult the Government Actuary and the Treasury. This enables awards to be adjusted to reflect prevailing economic circumstances.

Question 39

S50 Senior Courts Act 1981

Answer 39

S50 Senior Courts Act 1981 gives the court the power to award damages instead of an injunction but this will only be done in certain limited situations that were identified in Shelfer v City of London Electric Lighting Co [1895].

Question 40

American Cyanamid Co v Ethicon Ltd [1975]

Answer 40

American Cyanamid Co v Ethicon Ltd [1975]: In American Cyanamid the House of Lords required the claimant seeking an interim injunction to be able to demonstrate a real prospect that a permanent injunction would be granted at the trial.

Question 41

Holley v Smyth [1998]

Answer 41

Holley v Smyth [1998] another issue relating to quia timet injunctions was considered, that is, the motive of the defendant. The Court of Appeal held that the motive of the defendant for threatening publication was irrelevant if, by ordering an injunction, the defendant’s freedom of speech was curtailed in circumstances where he might have the defence of justification in any future defamation action against him regarding that publication.

Question 42

Imutran Ltd v Uncaged Campaigns Ltd [2001]

Answer 42

Imutran Ltd v Uncaged Campaigns Ltd [2001] Sir Andrew Morritt VC described the test to be applied, where an interim injunction appears to conflict with Art 10 ECHR (freedom of speech), as being higher than that. The higher test requires the applicant to be likely to establish a case for a permanent injunction at trial. In practice, he conceded that there would be little difference between the two tests. He added that even freedom of speech must be balanced against other aspects of public interest. On the facts of the case, he awarded the injunction in favour of Imutran, which was a pharmaceutical company involved in xenotransplantation (replacement of human organs with those of animals). The defendant, a campaign group, had acquired and published confidential information on its websites in breach of the applicant’s copyright. The judge held that no public interest was involved in the alleged breach of copyright.

Question 43

Marcroft v Scruttons Ltd [1954]

Answer 43

Marcroft v Scruttons Ltd [1954]: A personal injury claimant must mitigate his loss by obtaining proper medical treatment and not acting so as to prevent his recovery, and he is not entitled to damages in respect of any pain, suffering, loss of amenities or loss of earnings consequent upon his failing to do so. For example, in Marcroft v Scruttons Ltd [1954] a claimant’s damages were reduced because they refused to undergo recommended medical treatment.

Question 44

Potter v Arafa [1995]

Answer 44

Potter v Arafa [1995]: even if a claimant is disabled from continuing his present employment, he should be prepared to accept reasonable alternative work (Potter v Arafa [1995]).