LLB (Open Learning) Tort

CHAPTER 16

REMEDIES

 PRESCRIBED READING: Textbook Chapter 22

Casebook Chapter 15

The purpose of this Chapter is to introduce you to the remedies of damages and injunction,
with the emphasis on damages for personal injury.

Learning Outcomes

By the end of this Chapter you will be able to:

(i) Explain the purpose of an award of damages, and distinguish between general
and special damages;
(ii) Explain the different types of damages that may be awarded, and explain the
priniciple of the claimant’s duty to mitigate his loss;
(iii) Explain the process of calculating damages in a personal injury action;
(iv) Explain briefly how a claim for damage to property is assessed;
(v) Explain the distinction between the main types of injunction, and the principles
which govern their award.

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16.1 INTRODUCTION

Once it has been established that the defendant has committed a tort, it has then to be
considered what remedies are available to the innocent party. The two principal
remedies are damages and injunctions, of which the former is by far the most common.
The remedies of self-help and specific restitution are not dealt with in this material.

16.2 DAMAGES

This is a payment of money by the tortfeasor to the successful claimant. It is therefore

necessary to determine two separate issues, namely:

(a) for what consequences of the tort the claimant is entitled to be compensated; and
(b) how much the claimant is entitled to receive in compensation.

The first issue is concerned with the question of remoteness of damage (see Chapter 6),
while the second is concerned with assessment in money terms, with which this chapter
primarily deals.

16.2.1 General Principles

16.2.1.1 The Compensatory Principle

The aim of an award of damages is to compensate the claimant fully in

respect of the loss which he has suffered and to place him, so far as can
be achieved by a money payment, in the position he would have been in
had the wrong not been committed (restitutio in integrum).

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In an action for personal injury, however, it is well recognised that this

principle cannot meaningfully be applied to the non-pecuniary elements
of the claimant’s loss, yet money is all that the law is able to give (see
para 16.2.3.1).

16.2.1.2 A Single Action and the Lump Sum

 The general rule is that the claimant can recover once only in respect of
a single wrong, so that if the damage subsequently becomes more
extensive he cannot bring a second action to recover that further loss.
The most notable exception to the rule is where there is a ‘continuing’
tort, such as trespass or nuisance (see Textbook 748).

Furthermore, damages are generally awarded in a single lump sum,

providing a once for all assessment of the claimant’s losses, including
those which are likely to continue into the future.

The above rules may cause particular hardship in personal injury cases,
since the court will often have to make predictions about what is likely
to happen which may or may not turn out to be correct. The
development of alternative approaches in such cases has gone some
way towards alleviating the problem (see para 16.2.3.4).

16.2.1.3 General and Special Damages

In practice special damages represent those items of loss which are

susceptible of more or less precise quantification in financial terms,
while general damages represent those which cannot be so quantified.
Thus in a personal injury action loss of earnings to date of trial is
special damages, and future loss of earnings is general damages (see
para 16.2.3.2).

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Each item of special damage must be specifically pleaded and proved.

16.2.1.4 Mitigation of Damage

The claimant has a duty to mitigate his loss. This is not, however, a
legal duty, since it cannot be enforced as such; indeed the claimant may
be as extravagant as he wishes, but he cannot recover in respect of
damage which is attributable to his unreasonable failure to mitigate.

The onus is upon the defendant to prove that the claimant acted
unreasonably, though the standard of reasonableness is set at a
relatively low level. Furthermore, the doctrine of mitigation will not
prevent the recovery of expenses incurred in a reasonable, but
unsuccessful, attempt to limit the loss.

16.2.2 Types of Damages

Although damages are generally designed to compensate, some types have other
aims.

16.2.2.1 Nominal Damages

Nominal damages can only be awarded where the tort is actionable per
se and the claimant has suffered no loss. A small sum is awarded to
vindicate the claimant’s rights.

16.2.2.2 Contemptuous Damages

A derisory sum is awarded (usually the smallest coin in the currency) to

reflect the court’s view that, although technically successful, the claim
was entirely without merit. Such awards are most likely to arise in libel
actions.

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16.2.2.3 Exemplary or Punitive Damages

 Note the limited circumstances in which such an award may be made,

as set out in the speech of Lord Devlin in Rookes v Barnard and
affirmed in Cassell & Co Ltd v Broome (see Textbook 750 – 757 and
Casebook 798- 802).

 Note the distinction between exemplary damages, which are punitive,

and aggravated damages, which are compensatory (see Textbook 750 -
751). See also the proposals set out in the Law Commission Report of
1997 (see Textbook 757).

16.2.3 Damages for Personal Injury

 See Textbook 762 - 788

In a typical personal injury action the claimant may suffer both pecuniary and
non-pecuniary losses. With regard to the former a distinction is to be drawn
between past (ie pre-trial) pecuniary loss and future (ie post-trial) pecuniary loss.

 The cause of action arises at the date of the injury, and all damage that flows
from the injury is deemed to have been suffered at that time. When it comes to
the assessment of damages, however, the court will look at the position as it is at
the date of trial. Thus, account will be taken of all facts concerning the extent of
the claimant’s injury and its effect upon him that are known at the date of trial,
and of any supervening events, even though those facts or events were not
predictable at the time of the injury; see Jobling v Associated Dairies Ltd and
contrast Baker v Willoughby (see Chapter 6; Textbook 215 - 217).

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16.2.3.1 Non-pecuniary Loss

Such loss falls within the category of general damages (see para
16.2.1.3). There are two principal heads of non-pecuniary damage:

1. Pain and Suffering

 See Textbook 763 - 767

Damages are awarded for actual and prospective pain and suffering
caused both by the injury and any medical treatment required. By
s.1 (1) (b) Administration of Justice Act 1982 the claimant may
also recover for mental anguish caused by awareness of a reduced
life expectancy.

As Lord Scarman said in Lim Poh Choo v Camden and Islington

Area Health Authority an award under this head depends upon the
claimant’s personal awareness of pain and capacity for suffering, so
that no damages are awarded where the claimant is for some reason
unable to appreciate his condition (Wise v Kaye).

For similar reasons, as Lord Bridge said in Hicks v Chief Constable

of the South Yorkshire Police, fear of impending death felt by the
victim of a fatal injury before that injury is inflicted cannot by itself
give rise to a cause of action which survives for the benefit of the
victim’s estate (see Chapter 17).

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2. Loss of Amenity

 See Textbook 763 - 767.

This head of damages is intended to compensate for loss of mental

and physical faculty. In contrast to the award for pain and
suffering, assessment is objective in that it is based upon the fact of
deprivation, not whether the claimant is aware of such deprivation.
Substantial damages may therefore be awarded even though the
claimant cannot appreciate his loss (West & Son Ltd v Shephard;
Wise v Kaye). Loss of amenity can be general, such as where the
injuries have adversely affected the claimant’s sense of well-being
or cheerful disposition; or specific, for example where the claimant
can no longer play the piano.

 In practice a single, global figure is awarded for non-pecuniary

losses and the courts operate a tariff system encompassing a range
of figures for particular injuries; this gives a degree of flexibility
and enables account to be taken of the effects of the injury on the
particular claimant (see Textbook 767 - 769).

16.2.3.2 Pecuniary Loss

 See Textbook 769 - 788.

Note that pecuniary loss may fall into the category of either general or
special damages (see para 16.2.1.3).

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1. Past Pecuniary Loss

Calculating the claimant’s pecuniary loss from the date of the

accident to the date of trial (or earlier settlement) is often a matter
of relatively simple arithmetic.

(i) Loss of Earnings or Profits

This is a straightforward calculation in the ordinary case of a
claimant earning a regular wage or salary. In assessing the
damages, however, it is the net loss which is awarded, after
deduction of tax, national insurance and any contributions to a
pension scheme which the claimant may have been required to
make. Account should be taken of any increase in
remuneration which the claimant would have received had he
remained in his pre-accident employment. Where the claimant
has still been able to earn, but not as much as he would
otherwise have done, the loss is the net difference between the
two figures.

(ii) Medical and Other Expenses

The claimant is entitled to recover for any expenses reasonably
incurred. In determining what is reasonable, however, the
claimant is not obliged to avail himself of the facilities
provided by the National Health Service, but may, if he
chooses, seek private health care (s.2(4) Law Reform (Personal
Injuries) Act 1948). Medical expenses cover any form of
treatment, service or appliance reasonably required, including,
in an appropriate case, the extra cost of having to live in a
special institution. Similarly, the claimant may recover the
cost of having to acquire special living accommodation or
some other capital asset such as a specially adapted motor car.

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 The claimant may also recover expenses reasonably incurred

by a third party for his benefit (such as a relative visiting him
in hospital), and may also recover for the value of unpaid help
given by a relative or friend (Donnelly v Joyce; Textbook 785
- 786). In the latter case, however, note that the House of
Lords decided in Hunt v Severs that damages recovered are
held in trust for the carer, and that it followed that there could
be no such claim where the service was rendered by the
defendant himself.

(iii) Other Losses

The claimant may recover for any incidental loss or expense
suffered as a result of the injury, provided it is not too remote.
He may, for example, have lost certain benefits resulting from
loss of employment, such as loss of use of a company car.

2. Future Pecuniary Loss

In cases which have involved large awards of damages future

pecuniary loss has usually accounted for a very substantial part of
the total award.

(i) Future Loss of Earnings

 The court must assess what the claimant’s prospects would
have been but for the injury and what his prospects are, if any,
following the injury. The first step is to calculate the
claimant’s net annual loss of earnings at the date of
assessment; no account is taken of future increases in average
earnings generally, or of such matters as possible variations in
the rate of taxation or the effects of future inflation. The figure
arrived at is called the multiplicand. The second step is to
assess the number of years that the loss is likely to continue,
and then to discount this figure substantially to take account
both of future uncertainties and the fact that the claimant is
receiving accelerated payment of a lump sum which he can
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invest. This figure, known as the multiplier, is multiplied by

the multiplicand to arrive at the future loss of earnings award.
Note that the decision of the Court of Appeal in the
consolidated appeals reported as Wells v Wells has been
reversed by the House of Lords (see Textbook 776). It was
held that in assessing damages for anticipated future losses and
expenses, the award should be fixed on the assumption that the
claimant will invest in index-linked government stock (ILGS).

 Where the claimant’s injuries have reduced his life expectancy

he can still claim for the loss of earnings that he would have
received between the expected date of death and the date that
he would have ceased work but for the accident. This is
known as a “lost years” claim; see Pickett v British Rail
Engineering Ltd. (Textbook 777 - 778).

(ii) Loss of Earning Capacity

A claim under this head may arise where, although the
claimant is not suffering a current loss of earnings at the date
of trial, his injuries have put him at a disadvantage in the
labour market. There must be a real or substantial risk of such
loss; an award under this head may also be appropriate in the
case of a young claimant who has yet to start his working life,
rather than on the conventional multiplier and multiplicand
basis.

(iii) Future Expenses

These are likely to be the same items (or the same sort of
items) as would be included in the claim for special damages,
but where the loss will continue into the future it forms part of
the award for general damages. Anything that was reasonably
recoverable as special damages is also recoverable for the
future. Thus the claimant will recover for continuing medical
expenses, nursing care, and the maintenance and renewal of
special aids and appliances. As with loss of earnings
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assessment is made using the multiplier and multiplicand

approach, though it does not follow that the multiplier will be
the same as that applied to the loss of earnings, and different
items may require a separate multiplier depending upon for
how long the expense is likely to continue.

 Note that where there is a claim for the cost of future care, as
well as a claim for loss of earnings, care must be taken to avoid
duplication of damages in the area of living expenses (see
Textbook 785).

(iv) Loss of Future Benefits

Apart from loss of earnings the claimant may claim for such
items as deprivation of the use of a company car or some other
valuable benefit of his employment, including loss of pension
rights.

16.2.3.3 Deduction from Benefits Received

 See Textbook 778 - 784.

Following the compensatory principle (see para 16.2.1.1) any benefits

or gains received or made as a direct result of the injury should be
deducted from the claimant’s claim, provided that there is a clear
causative link between the injury and the benefit or gain. Not all
benefits, however, are deductible, and a distinction must be made
between receipts from private sources and social security benefits.

 As far as private receipts are concerned see Textbook 779 - 782. With
regard to the deduction of state benefits the position, in brief, is that
where an award of damages is made in respect of an injury relevant
state benefits paid in the five years following the date of the accident or
injury must be deducted by the defendant from the total award and paid
over to the DSS. If the claim is settled before the end of the five year

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period the recoupment provisions cease to apply and no further

deduction is made.

Under the Social Security (Recovery of Benefits) Act 1997 there can be
no deduction from damages for non-pecuniary loss or for future losses.
Recoupment bites only on loss of earnings, care costs and loss of
mobility and the Act specifies the benefits which may be deducted from
each of the above three categories eg Incapacity Benefit may only be
deducted from loss of earnings, so that benefits are deducted from
damages on a “like for like” basis.

16.2.3.4 Methods of Paying Damages

 See Textbook 769 - 773.

Although damages are usually awarded in a single lump sum, including

those in respect to future losses (see para 16.2.1.2), note the recent
development of “structured settlements”, whereby the claimant can
receive periodic payments financed by the purchase by the defendant of
an annuity on the claimant’s life. At the present time the court has no
power to order that compensation be paid in this way.

 A further significant development has been the introduction of claims

for provisional damages under s.32A Supreme Court Act 1981; for the
circumstances in which such an award may be made see Textbook 772-
773.

16.2.3.5 Interest on Damages

 See Textbook 788.

Note that the court must generally award interest unless there are
special reasons for not so doing. Interest must, however, be pleaded
and note that fixed rates apply.

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16.2.4 Damage to Property

 See Textbook 788 - 794.

Where there is total destruction of the claimant’s property, the measure of

damages is the market value at the time of destruction. The claimant may also
recover for loss of use before replacement, which may include the cost of hiring
a substitute if it is reasonable to do so or, in the case of a profit-earning chattel,
loss of profit.

Where property is damaged the usual measure of damages is the diminution in

value (ie normally the cost of repair), together with loss of use during repair. If
the cost of repair would exceed the value of the property in its undamaged state
the claimant can only recover the latter unless the property is in some way
unique. Where the property is less valuable in its repaired state this diminution
in value is recoverable along with the cost of repair.

16.3 INJUNCTIONS

 See Textbook 796 - 802.

An injunction is a court order restraining the commission of some wrongful act, or the
continuance of some wrongful omission. However, it is appropriate as a remedy only
where the defendant’s conduct is continuing or repetitive (such as in the case of
nuisance or trespass), and therefore is not available in an ordinary negligence action.

 As an equitable remedy the court has a discretion in deciding whether to grant an

injunction; for the factors which may be relevant in making that decision see Textbook
796 - 798.

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16.3.1 Interlocutory Injunction

 This is a provisional order pending a full trial of the action. The claimant need
not prove his case but must show that there is a ‘serious question’ to be tried,
and, if he does so, the court will then decide the issue on the ‘balance of
convenience’; see American Cyanamid Co v Ethicon Ltd (Textbook 798). If the
claimant succeeds at the hearing of the action on its merits a perpetual injunction
will be granted.

16.3.2 Mandatory Injunction

 Most injunctions are prohibitory, that is they forbid the defendant from doing a
particular act. Rarely, the court may grant a mandatory injunction requiring the
defendant to take positive steps to undo what has already been done, but it will
not be granted unless there is a strong probability of serious damage if it is
refused. It is also likely to be refused if the cost of complying with it is out of all
proportion to the harm suffered by the claimant. See Redland Bricks Ltd v
Morris (Textbook 800).

16.3.3 Quia Timet Injunction

This may be granted where there is a strong likelihood of imminent damage,

provided the claimant can show that there is a good cause of action (even though
at the time of the application no cause of action has accrued).

16.3.4 Damages in Lieu

 By s.50 Supreme Court Act 1981 the court has a discretion to award damages in
addition to, or instead of, an injunction. The discretion to award damages in lieu
is exercised sparingly, however, because such damages are given in full
satisfaction both for damage already done and for all future damage that may
occur, and there is a reluctance to allow the defendant to ‘buy’ the right to
commit a tort. The discretion will only normally be exercised if the conditions
set out in Shelfer v City of London Electric Lighting are satisfied (Textbook
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802). The Court of Appeal recently applied the test in Shelfer in Jaggard v
Sawyer, where the fact that the defendants had acted openly and in good faith,
and the fact that the plaintiff had failed to seek interlocutory relief at an early
stage, were considered to be relevant (though not conclusive) factors in deciding
that the grant of an injunction would be oppressive.

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SELF-TEST QUESTIONS

1. What is the principal aim of an award of damages?

2. ‘An award of damages is normally final.’ Explain the meaning of this statement and
consider whether there are any exceptions to the general rule.

3. Distinguish between special and general damages and explain the significance of the
distinction.

4. What is meant by saying that the claimant is under a general duty to mitigate his loss?

5. In what circumstances might there be an award of exemplary or punitive damages?

6. When are damages assessed in a personal injury action?

7. What are the two principal heads of non-pecuniary loss in a personal injury action?
Can damages be awarded for loss of expectation of life?

8. Can a third party who gives up work to look after an accident victim recover his loss
from the defendant tortfeasor?
9. Briefly explain how a claim for future loss of earnings is calculated.

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10. What factors do you think might be relevant in choosing an appropriate muliplier?

11. What is meant by a claim in respect of the “lost years”?

12. In what circumstances might an award of damages for loss of earning capacity be
made?

13. Briefly explain the DSS recoupment provisions.

14. In what circumstances might an injunction be an appropriate remedy?

15. In what circumstances might damages be awarded in lieu of an injunction?

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