Tort Remedies Flashcards
(1 cards)
Tort remedies essay plan
Damages —
Compensatory damages;
- remedy’s aim is to put C back in position they would’ve been in if not for the tort
General damages:
- these are ‘unliquidated’ or ‘pecuniary’ - cannot be exactly calculated so it’s for the judge to decide
- post-trial loss of earnings, as precise amount cannot be calculated
- formula used: multiplicand (court’s assessment of the C’s net annual loss) x multiplier (period of future loss) = future loss of earnings
- awarded for:
- pain and suffering (past, present and future physical pain and mental anguish)
- loss of amenity (loss of things C used to enjoy, senses, and marriage prospects)
- future loss (pension rights, future expenses eg nursing care…)
- specific injuries (standard tariff for most injuries supplied by the Judicial Studies)
Special damages:
- pre-trial loss of earnings are these, as the precise figure can be calculated and assessed with some accuracy eg medical expenses, loss of earnings
- C can claim special damages covering expenses (eg medical or travel expenses) and loss of earnings up to the date of the trial
Damage to property:
- destroyed - generally assessed by reference to the market value of the property at the time of its destruction
- damaged - usually assessed by reference to cost of repair, unless repair cost is greater than market value, then the latter is used
Economic loss:
- if purely economic loss claim is successful (rarely), the nature of the claim means loss can be exactly calculated
- where it’s a result of personal injury or damage to property (more likely to succeed eg loss of earnings), it can be exactly calculated and will be included in overall claim
Interim and periodical payments:
- interim - provided by part 25 of Civil Procedure Rules ie payments made before the full settlement is awarded
- here, immediate money is required before the final calculation of the claim, in order to pay for things eg adapted housing, equipment or expensive care
- most commonly used in personal injury claims
- periodical - provided by s2 of Damages Act 1996 - a court awarding damages for future pecuniary loss in respect of personal injury ‘may order that the damages are wholly or partly to take the form of periodical payment’ ie regular payments in the future
Other types of damages (not compensatory):
- nominal damages - often paid when no damage has been suffered eg 1pound
- contemptuous damages -court feels that the action should never have been brought, often because C’s behavior has been reprehensible
- aggravated damages - court feels that C’s injury has been aggravated by the D’s conduct and therefore may increase the amount of damages
Mitigation of loss;
- C must do everything reasonable to mitigate their loss - D won’t be liable for damages resulting from C’s unreasonable failure to do so
Injunctions —
- a court order, either to force/prevent a D from doing something
- equitable remedies (equivalent or comparable compensation) - at the discretion of the court
- where public interest outweighs C’s interest, court may decide to award damages in lieu of an injunction
- damages may also be awarded in addition to an injunction
Prohibitory injunction:
- an court order to prevent D from committing a tort or from continuing it
- usually sought in nuisance where C wants activity to stop
Mandatory injunction:
- a court order to compel D to act in a particular way
- usually sought where C wants D to rectify damage caused
Partial injunction:
- a court order to limit/reduce D’s activities
- usually granted where the tort has some public benefit
