12.2 Remedies Lecture

Once a claimant’s case has been successful, the court will decide on an appropriate remedy to apply. Remedies come in two primary forms: damages and injunctions.

Damages

This is the award of a monetary sum to the claimant, which must then be paid by the defendant. The general principle is of full compensation; the amount awarded should return the claimant to the position they would have been in but for the tort.

An award of damages is made up of a number of different smaller awards, taking into account the different elements of the case.

The Mitigation Principle

A claimant must act, where reasonable, to mitigate their own losses.

Special Damages

These are damages which can be quantifiably specified at the time of the trial (or that are for damage which occurs pre-trial). This may include:

  • Damages for injuries manifested, quantified using the Ogden tables.
  • Loss of earnings.
  • Pre-trial medical expenses, where reasonable, Donnelly v Joyce [1973]. The compensation principle means that a claimant will only be able to recover the costs incurred, and not those that they were potentially entitled to. Reasonableness here will not require that the claimant is a complete spend-thrift, Rialas v Mitchel [1984], and may differ from claimant to claimant, Roberts v Roberts [1960].
  • Personal expenses, such as additional heating, Hodgson v Trapp [1989], or special clothing, Donnelly.
  • Property damage.

General Damages

Damages which cannot be quantified at the time of the trial, and which are more prospective in nature, are general. The court will ask the claimant to demonstrate what their likely future costs and losses are likely to be. These are much more difficult to quantify accurately. They can include:

  • Future loss of earnings. Promotions may also be considered where the claimant was on a career ladder of sorts, Brittain v Garner [1989].
  • Pain and suffering, the exact calculation of which will depend on the claimant and the manner of their injury. This is subjective, H West & Son Ltd v Shepherd [1964].
  • Loss of enmity, H West & Son v Shepherd.

Nominal Damages

These are a small financial award given when a claimant’s rights have been infringed, but little to no harm has occurred.

Contemptuous Damages

Where the courts are of the belief that a claim technically has legal merit, but little moral merit, then they will award a very small amount of contemptuous damages to the claimant, Reynolds v Times Newspapers [1998].

Aggravated Damages

These are damages reflecting that the case has been aggravated for one factor or another, usually in relation to humiliation or distress caused to the client, Appleton v Garrett [1996].

Exemplary Damages

These are similar to aggravated damages, but stem from the defendant’s own poor behaviour, Thompson v Metropolitan Police Commissioner [1998].

Injunctions

An injunction is a declaration by a court that the defendant must behave in a certain manner. They are at the court’s discretion and are an equitable remedy.

Prohibitory Injunctions

These prevent the interference with a claimant’s right. These are generally granted when there is a good change of the tortious behaviour being repeated, Wollerton and Wilson Ltd v Costain Ltd [1970].

Mandatory Injunctions

These tend to be rarer; they involve a greater interference with the defendant in requiring him to carry out some act, Redland Bricks Ltd v Morris [1970].

Further Injunction Subtypes

An injunction may be quia timet, used when the claimant fears tortious action will occur, but that it has not yet taken place.

An injunction may be final, granted after the tort has been committed but where it is likely that the tort may reoccur.

The inunction may be an interim or interlocutory injunction, applied whilst the tortious activity is ongoing and often used to stop the defendant’s tortious activity whilst the matter is being resolved by the courts, American Cyanamid v Ethicon [1975].

Equity

Injunctions are equitable and are affected by all the principles of equity law.


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