Remedies in Tort

 The Main Remedies

• The main remedies for tort are:
• Damages - the aim is to put the injured party in the same position as they would have been in if the tort had not occurred. Damages are the main remedy for tort
• Injunctions - this is a court order instructing a party to do or refrain from doing something. In tort, injunctions are mostly used in cases of nuisance

Mitigation of Loss

• A claimant who had suffered a loss as a result of a tort is entitled to damages for any losses
• However, the claimant is expected to take reasonable steps to mitigate any losses
• Unnecessary losses on an objective scale will be deducted
• The Flying Fish
• I have a ship called the Flying Fish. Another vessel negligently collides with my ship causing damage. I refuse any offer of aid after the collision. My ship sinks. Can I make a claim against the other vessel for the sinking of my ship?
• If my refusal of aid is regarded as negligent, I can only recover the damage caused by the collision and not the sinking of my ship
• Ronan v Sainsbury's (2006)
• Claimant injured at work due to the defendant's negligence. The injuries were so bad that surgery couldn't fix it. His injuries meant that he couldn't stay in his banking job (after he left the defendant's employment)
• As a result, he decided to go to university and after a year his condition improved to the point that he would've been able to return to his original job at Sainsbury's
• The defendants argued that proper mitigation of loss would have required the claimant to resume his old job with them and drop out of uni
• HELD - No lol. This was unreasonable because he only decided to go to university because of the injuries caused by the defendant

Damages

• The premise of damages is the same as in contract - where the point is to put the person in the position they would have been in had the tort not occurred (had the contract been properly performed) - the phrase for this in tort is 'restitutio in integrum'

Calculating the Loss that Translates to Damages

• South Australia Asset Management Corporation v York Montague Ltd (1996)
• Property had been valued at a certain price but after the loans were made, using these properties as security, the values of the properties fella and the borrowers defaulted in their loans
• The HoL said that when calculating damages for a breach of duty of care, you need to first determine what the exact nature of the duty was
• Courts held that if the defendants had advised the claimants whether or not to actually make a loan, they would have been liable for all of the losses that arose, but as the losses only stemmed from a negligent evaluation, the defendants were only liable for losses stemming from said negligence
• Principle - a defendant will only be liable for the consequences arising from negligent performance of a duty - taking into account things like foreseeability and remoteness of loss

Compensating for Property Damage

• If a property is completely destroyed, the defendant has to pay the cost of completely replacing the house
• If the house is only damaged so far as property is concerned, the damages will be the cost of repair AND the amount by which the house has fallen in value
• The defendant will also be liable for consequential losses on the basis discussed in Caparo
• Simple economic losses could be, in the case of a car accident, the cost of hiring a replacement vehicle while your own is in the garage

Types of Damages Payable

• The main categories of damages payable for tort are:
• General damages
• Special damages
• Nominal damages
• Contemptuous damages
• Aggravated damages
• Exemplary damages

General and Special Damages

• General damages: these are damages which are not capable of being calculated before the trial and the court has to calculate them. For instance, loss of future earning and for pain and suffering
• Giambrone v JMC Holidays (2002)
• Mass food poisoning at a resort in Majorca
• ISSUE - what value do you place on care?
• Defendant said that awarding a sum for parental care is unfair because they should do it anyway
• HELD - damages payable because of the extent of the poisoning as the children needed extra care
• Special damages: these are damages which are capable of being calculated at the time of the trial. For instance, loss of earnings and medical expenses before trial

Pecuniary Losses

• Pre-trial expenses - actually and reasonably incurred since the date of the accident and up to the date of the trial. Loss of expenses, damage to clothing and belongings and especially medical costs. The medical costs can even be homeopathic in nature and slightly out of the mainstream, such as acupuncture

Expenses Incurred on Your Behalf by Another

• Donnelly v Joyce (1973)
• Issue - can a child recover lost earnings forfeited by a parent in order to stay home and care for them?
• Yes. These losses are directly consequential and stemmed directly from the accident
• Hunt v Severs (1994)
• Following the negligence of the defendant, the claimant was allowed to recover the cost of care that she would have had to pay for, despite the fact that the claimant had married the defendant, who had provided the care for her
• Court said not allowing her to recover the cost of care would be unfair and against public policy

Other Losses

• Loss of opportunity/chance, including future earnings that would have been earned up to the date of judgment

Future Loss of Earnings

• Typically calculated by reference to a calculation that takes account of how long a claimant is likely to live, and what they would have earned over that time had the negligence not occurred
• Sometimes when this is calculated for a whole life term, the courts often come up with a figure that will allow the claimant to buy an annuity - a financial package that pays an amount on a monthly/annual basis
• The courts will also make an allowance for the fact that the claimant's prospects may well have improved but for the accident, as seen in Doyle v Wallace. This is called a multiplicand 
• Doyle v Wallace
• Court had to decide calculation for future loss of chance of a careworker who had been about to commence training as a teacher
• Court agreed that it had to try to be realistic and apply a 'discount rate'
• Smith v Manchester - future lost earnings is an accepted head of loss, as is loss of chance in monetary and career terms

Calculating Lost Years

• The courts have to make this estimate, which is usually an attempt to work out how long the defendant would have lived had the accident not occurred, with a view to working out what their earnings would be for that period:
• Pickett v British Rail (1978)
• established the principle that damages for lost years could include a sum to cover loss of earnings in that period, whatever the age of the claimant.
• Hall v Rankin (2000)
• Courts said it is possible to increase damages to take allowances of the fact a claimant might be on a no win no fee arrangement and would therefore need to pay out a success fee to their lawyer when they won the claim

Other Heads of Loss

• Pain and suffering - resulting from the injury itself and/or from the medical treatment
• Loss of amenity - the right to enjoy sport, the loss of smell, sight, touch, even a reduction in the chance of finding a marriage partner. Considerable sums have been allowed for the loss of a sex life

Actual Payments

• Lump sums can be paid in one go, or bit by bit as an interim payment. Also the court might allow a sum to represent the effect of injuries not known at the date of the trial...especially important when you are dealing with asbestos claims
• Social security payments are always deducted from damages
• It may also be the case that the right to sue for damages can be passed down to someone who will inherit from your estate

Nominal Damages

• These damages are awarded when there has been little or no harm caused and the court wishes to award a very small amount - often £20
• They are only used for torts which are actionable per se
• A tort 'actionable per se' is a tort which does not require proof of damage to be actionable. This means that damages are payable just because the tort has happened. Defamation and trespass are two torts which are actionable per se

Contemptuous Damages

• These damages are awarded when the level of harm has been low and the court believes that an action should not have been taken even though the defendant has been liable under tort. These damages can be as low as one penny
• Unlike nominal damages, they can be awarded for any tort

Aggravated Damages and Exemplary Damages

• Aggravated damages: these are damages awarded over and above that needed to put the claimant back in the position that they would have been in had the tort not occurred. They represent an additional sum of money because the initial harm was made worse because of some aggravating factor. They are mostly awarded in cases of defamation and trespass to the person
• Khodarapast v Shad (1999)
• Aggravated damages were deemed appropriate because of the defendant's false rumour-mongering about the immoral conduct of his ex-partner - which involved photoshopping her facial image on top of pornographic images etc
• Rowlands v CC of Merseyside (2006)
• A claim involving wrongful arrest, as well as pain and discomfort caused by handcuffs being placed upon the claimant, not to mention the shame of being arrested in front of her children and family
• Aggravated damages were payable
• Exemplary damages: these are sometimes called 'punitive damages'. These are damages whose purpose is to punish the defendant for committing the tort. They are only awarded in certain circumstances and are meant to punish the defendant, as well as deter others from committing the same offence
• Rookes v Barnard (1964)
• This case is important because when it was heard on appeal in the House of Lords, Lord Devlin explained the purpose of exemplary damages and the circumstances when they could be awarded
• Lord Devlin: "Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter"
• He identified three circumstances when exemplary damages could be imposed:
• Oppressive, arbitrary or unconstitutional action by the servants of the government
• Where the defendant's conduct was calculated by him to make a profit by himself which may well exceed the compensation payable to the claimant
• Where a statute authorises the paying of exemplary damages
• Some argue that exemplary damages should not be allowed because the purpose of civil law is not to punish. Punishment, it is argued, should be the purpose of the criminal law

Statutory Authorisation

• There are no cases yet that demonstrate how this will work, but there is obviously an onus on businesses to demonstrate that they have not used this power wrongly or disproportionately

Conduct Designed to Make a Profit

• Axa Insurance v Financial Claims Solutions Ltd (2018)
• Axa successfully sued the defendant for submitting fake insurance claims, but they were only awarded standard compensation. They argued that they should have received exemplary damages and the CoA agreed, simply because the fraud was so sophisticated that it involved fraud and deceit from the very outset, and their behaviour needed to be punished
• Casell & Co Ltd v Broome (1972)
• Claimant was a retired captain in the navy who had taken part in a naval campaign in the high Arctic in Russia which resulted in the loss of many ships - it was one of the heaviest defeats in WWII and it was implied by the defendant that the claimant had failed to distinguish himself in battle 
• The claimant successfully sued in libel and was awarded £25k in exemplary damages - because the defendant would have made a sizeable profit from the sale of the book

Oppressive Conduct by Government Servants

• This is a reference to behaviour that falls short of what is expected by the state who employs them. The obvious example is the police
• Huckle v Money (1763)
• The claimant was detained under a search warrant. He was detained for 6 hours but was otherwise well treated. Even so, the court awarded £300 exemplary damages stating that entering a person's home with a warrant didn't even have his name on it was a serious breach of the claimant's civil liberties
• Muuse v Secretary of Stare for the Home Department (2010)
• A Somalian man had been unlawfully detained because he was deemed not to have a right to remain - even though there was strong evidence (namely his passport) that he was an EU citizen (Dutch). He was mistreated and detained illegally
• CoA stated that exemplary damages were justifiable in order to show strong disapproval of the official's behaviour
• John v Mirror Group Newspapers (1995)
• The jury were told that exemplary damages could only be made if the publisher of a defamatory statement had no genuine belief that the published info was true
• Thompson v Met Police Commissioner (1997)
• Juries can be told that they can award a sum designed to punish the defendant. This might be from £5000 to £50,000 where officers of at least the rank of superintendent were directly involved
• It is presently uncertain whether exemplary damages will continue to be awarded since not all the courts agree with it in principle, but it does seem the case that where the behaviour of the defendant is really bad on an objective standard - then exemplary damages will continue to be awarded

Problems With Damages

• Cost
• this has been highlighted with the popularity of no win no fee agreements - where the winner takes a success fee
• These days the position has improved for defendants who now only need to make what the courts call 'damages based assessments' where they only take the case on for a percentage of the damages awarded when the claim succeeds. These are called contingency fee agreements
• The CPR states that a lawyer cannot take more than 25% BUT - the winners are now able to recover an automatic 10% on top of that to make up for the fact that claimants are now no longer able to recover the legal expenses insurance premium from the defendants... and if the claimants lose, the position is now that they no longer need to pay their opponent's costs
• Still, damages remain expensive and the role of insurance for losing defendants is obviously important (and sometimes not cheap)
• The complaint about the present system is that it does mean less compensation is payable to the successful claimants
• Lump Sums
• Payment of a lump sum sometimes has the disadvantage of not covering the injury and the losses that the claimant has suffered. Sometimes injuries deteriorate even further in a way not anticipated by the court
• Also, it is sometimes quite hard when assessing loss of earnings and loss of opportunity and chance - given the claimant's present state of employment
• Inflation is another factor
• There is sometimes a concern that the lump sum awarded by the court will be used inappropriately such that the claimant's accident-related losses are not addressed by them
• The courts therefore have a new power to award a structured settlement that means a lump sum is not awarded all in one go
• Do the damages actually reflect the degree of fault of the parties?
• The idea of damages is obviously to compensate the claimant rather than punish the defendant, so sometimes what happens is that the damages that cover losses may only have arisen as a result of one defendant making a momentary mistake, and in terms of fault may be the same as a defendant who is much more seriously careless
• Loss of Amenity
• It is not always easy to calculate a sum that reflects this - amenity being the ability in future of someone to do something - e.g getting married or going to the gym
• The Law Commission is unhappy with how the Courts address this since there is a risk of over-compensation of claimants who might recover more quickly than the evidence suggested at trial
• Damaged for Bereavement
• Are possible but much doubt remains over the amounts and even when someone should be awarded this, does it attach to anyone who knew the deceased as well as obvious relations such as spouses?

Injunctions

• An injunction is a court order that requires the defendant to behave in a certain way
• Injunctions can take two forms:
• Prohibitory injunctions: these instruct the defendant to not behave in a certain way, i.e to stop committing the tort
• Mandatory injunctions: these instruct the defendant to take an action to rectify the situation created by the tort. They are rarely granted in tort actions
• Injunctions tend not to be used for torts such as negligence or occupier's liability
• Injunctions are mostly used for the torts of nuisance, trespass to land and defamation
• The court laid down some guidelines on when mandatory injunctions should be awarded, in a case called Redland Bricks v Morris (1970)
• Redland Bricks v Morris (1970)
• Building work carried out by the defendants undermined the claimant's land. The claimants were awarded damages and also a mandatory injunction ordering the defendants to pay for support work. This work was very costly and amounted to more than the value of the claimant's land itself, so the defendants appealed against it
• HoL held - appeal allowed. This is disproportionate and the claimants should have been limited to compensation only for the damage caused
• They said that in the future, a mandatory injunction would only be granted where:
• damages would not be adequate to remedy the harm done to the claimant
• also, the expense associated with and flowing from a mandatory injunction is not a reason not to award it - particularly where the defendant has acted dishonestly

Quia Timet Injunction

• This is an injunction which is obtained prior to the commission of a tort
• Quia timet is Latin for 'because he fears'
• The circumstances when a quia timet may be granted was stated in Fletcher v Bealey (1884): the danger must be imminent, the potential damage must be substantial and the only way the claimant can protect himself is through a quia timet

Interim Injunction

• This is also known as an interlocutory injunction and may be granted once an action has begun but before the main court hearing. The injunction will instruct the defendant to not behave in a certain way
• Designed to stop any further harm happening to the claimant and/or their property in the period between the start of legal proceedings and the date of trial
• If you are awarded an injunction at trial, then this is typically something that the defendant needs to do in perpetuity - or until a specified time period runs out
• The conditions for granting an interim injunction was stated in American Cyanamid v Ethicon (1975). They are:
• There must be a serious issue to be tried
• The 'balance of convenience' must favour the granting of the injunction - if there is no imbalance then no injunction should be issued so as to preserve the status quo
• (Basically - the court will not grant an injunction if damages are adequate to cover the losses suffered)
• An interim injunction is only granted if the claimant undertakes to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the claimant had not been entitled to restrain the defendant from doing what he was threatening to do. However, these damages may not be adequate compensation if the defendant is made to stop doing something. The courts must try to balance the need for the injunctions against the effects on the defendant

Damages in Lieu of Injunctions

• The court has discretion to order damages instead of an injunction when one is requested
• Shelfer v City of London Electric Lighting Co (1895)
• Established key rules as to when damages ought to be considered in lieu of an injunction:
• When the injury to the claimant's legal rights is small
• Where the loss is capable of being calculated in money terms
• Where the loss is capable of adequate compensation in money terms (where a sum will cover the losses incurred)
• It would simply be oppressive to award an injunction
• Daniells v Mendonca (1999)
• The defendant built an extension to his house that encroached on the claimant's land and also posed a fire risk. The legal issues were of trespass and breach of statute (planning) which required the claimant to be fully informed as a neighbour of proposed works
• Defendant said this case was perfectly capable of being settled by damages and that an injunction would be inappropriate, but the courts disagreed, and in applying Shelfer awarded the injunction because:
• The damage was small but permanent
• The defendant was actually planning more worjds
• There was the structural and potential fire risk
• The defendant had been less than honest in his behaviour throughout
• Defendant had also failed to comply with the relevant Act
• Jacklin v CC of West Yorkshire
• A police force that was having building works done had obstructed a driveway used by the claimant to access his property
• Claimant applied to court for an injunction to get it removed
• Action for damages was in nuisance. The injunction was in addition to the nuisance action, and the police said an injunction was oppressive
• HELD - because of the defendant's behaviour (they made no attempt to clear the driveway) the court decided that it was not oppressive or unfair for the claimant to be granted the injunction
• Regan v Paul Properties
• A claimant whose neighbour had constructed a building that was cutting off light to his building applied for an injunction for the building works to not only cease, but for what had been already built to be pulled down
• Defendants said that the drop in value of the claimant's property could easily be compensated for by damages, and that the effect of the injunction would be much more expensive, oppressive and disproportionate as a remedy
• HELD - CoA said the costs to the defendant of pulling down their building will only be high because they disregarded the wishes of the claimant and carried on building in spite of his agreement. The injunction was therefore granted and was not unfairly awarded in the circumstances
• Coventry v Lawrence (2014)
• Court said that the Shelfer judgment was sound, but these principles shouldn't tue the courts hands to a certain course of action in the event that they aren't fulfilled

Final Injunction

• A claimant will not be granted an injunction unless they can establish that damages would not be an adequate remedy

Injunctions as an Equitable Remedy

• The following are three of the maxims of equity:
• One who seeks equity must do equity
• Equity does nothing in vain
• Delay defeats equity
• Injunctions are an equitable remedy and as such are at the discretion of the court and not a right
• The maxims of equity determine when they might not be awarded
• One who seeks equity must do equity - injunctions will not be granted if the claimant has acted unfairly (e.g where the claimant has encouraged the defendant to commit the tort)
• Equity does nothing in vain - the court will not award an injunction if the defendant will be unable to comply with its terms
• Delay defeats equity - the court is unlikely to award an injunction where there has been an unreasonable delay in asking for an injunction