Common Law Remedies

The main remedies in tort are damages, which aim to compensate the
claimant financially, and injunctions, which aim to stop or prevent the
behaviour which comprises the tort.

An award of compensatory damages may be composed of either

general or specific damages.

 General damages are designed to compensate for the kinds

of damage which the law presumes to be a result of the tort,
such as pain and suffering from a personal injury and loss of
future earnings where the claimant cannot return to a previous
employment after the injury. Such damages cannot be
calculated precisely, but the courts use the awards given for
similar injuries in the past as guideline.
 Special damages are those which do not arise naturally from
the injury. They are specifically listed in pleadings and proved
in court, and may include, for example, specific expenses
incurred as a result of an accident.

COMPENSATORY DAMAGES
The principle of restoring the claimant to the position they would have
held if the tort had been committed is called restitutio in integrum.
There are two kinds of losses: pecuniary (financial) and non-pecuniary
(other than money).
The issue of what will amount to restitutio in integrum is not
straightforward. This is especially the case where the loss is purely
financial.

South Africa Asset Management Co v York Mantague

The defendants had negligently valued a property and the claimants
let money for the purchase of the property based on those valuations.
Then, property prices dropped, and the borrowers defaulted on the
loan, leaving the lenders with a property worth less than the money
they were owed. In one of the appeals, the lenders lent 1.75 million on
a property that was valued at 2.5 million, but was actually worth 1.8
million. The House of lords said that in order to calculate damages for
breach of a duty of care, it was first necessary to determine exactly
what the duty consisted of. A defendant would only be liable for
consequences arising from negligent performance of that duty. Here,
the defendants did not have a duty to advise the claimants whether or
not to make the loan, their duty was to inform the claimants of the
value of the property, so their liability was limited to the consequences
of that advice being wrong, and not the entire consequences of the
loan being made. The defendants did not have to compensate for the
drop in property prices, as this was not a consequence of the negligent
valuation. Hence, the correct damages was 700,000.

PROPERTY DAMAGE
Where the tort has caused damage to or loss of property, the
defendant will be liable for the cost of putting the claimant back in the
position they would have been if the tort had not happened. If the
property is destroyed, the defendant will have to pay the cost of
replacing the property, at current prices, even if this is more than the
item cost the claimant. If it is damaged, the defendant will be required
to pay the amount by which the damage has decreased the property’s
value (typically, the cost of repairs).

MITIGATION
A person who falls victim to a tort is expected to take reasonable steps
to mitigate any loss; the defendant will not be liable for compensatory
damages in respect of any losses that could have been prevented by
such steps. However, since the situation is the fault of the defendant,
not the claimant, the standard of reasonableness is not particularly
high, and the claimant is certainly not required to make huge efforts to
avoid a loss that is the defendant’s fault.

Ronan v J Sainsbury
The claimant was 19 when he was working for the defendant, after an
accident he had to have multiple operations. He started a career in
banking, but still needed injury. The injury resulted in depression, and
as a chance of career, he went to university. A year later, his health
improved so much that he could have gone back to banking. The court
held that the decision to change careers had been a direct result of the
injuries caused by his accident. Once the claimant had started his
course, it was unreasonable of the defendant to expect him to leave it,
and the claimant successfully sued the defendant for loss of future
earnings.

PERSONAL INJURY
Damages for personal injury (which covers physical or psychiatric
harm, disease and illness) raise problems not encountered with other
types of loss. They made be divided into pecuniary (such as loss of
earnings and medical expenses) and non-pecuniary losses (such as
pain, shock, suffering and loss of physical amenity).

Pecuniary losses
The courts have divided pecuniary losses into the following ‘heads of
damages’.

1. PRE-TRIAL EXPENSES
Firstly, pre-trial expenses. The claimant is entitled to recover all
expenses actually and reasonably incurred as a result of the accident
up to the date of the trial, for instance, damage to clothing and
medical expenses.

2. EXPENSES INCURRED BY ANOTHER

Secondly, expenses incurred by another. The most common example
here is where a claimant has had to be looked after by a relative who
has had to give up paid work as a result. Such carers cannot bring an
action directly against the defendant to seek compensation, but in
Donnelly v Joyce, the court recognised that the claimant could
normally claim for losses as part of his own claim.

Donnelly v Joyce
The claimant was a child and his mother had to give up work to look
after him when he was injured by the defendant’s negligence. The
claimant succeeded in claiming for the financial loss that his mother
had suffered as a result of caring for him. It was decided in Hunt v
Severs that any damages received under this head are awarded to the
claimant to compensate the carer and not to the claimant themselves.
3. PRE-TRIAL LOSS OF EARNINGS
Thirdly, pre-trial loss of earnings. The claimant can receive damages
for the loss of the earnings or profits which could otherwise have been
earned up to the date of the judgment. The amount awarded will be
that which the claimant would have taken home after tax and National
Insurance contributions have been deducted.

4. FUTURE LOSSES
Fourth, future losses. Claims for future pecuniary loss usually comprise
loss of future earnings and costs of care. They are regarded as general
damages. Damages are usually awarded as a lump sum, but since the
purpose of damages for loss of future earnings is usually to give the
claimant an income to replace the one they would have had if the
injury had not happened, the courts therefore calculate a figure which
would be sufficient to buy an investment called an annuity that would
give the claimant the right level of income for life, or however long the
injury was expected to last.

The starting point for calculating future loss of earnings is the

difference between income before the accident and afterwards, which
is called the net annual loss. Predicting future earnings can be a
matter of guesswork, especially in ‘loss of a chance’ cases, where the
claimant alleges that there was a significant chance that their financial
prospects would have improved in the future.

Doyle v Wallace
The claimant was badly injured and was unable to work. She had been
planning to train as a drama teacher, and if that failed she planned to
get a clerical job. The court found that she had a 50% chance of
qualifying as a drama teacher, and calculated the damages on the
basis of an income that was halfway between that of a drama teacher
and that of a clerk.
Then, the court adjusts the net annual loss to take into account factors
which might have altered the claimant’s original earnings (such as
promotion prospects). The resulting figure is called the multiplicand.
The court then takes the number of years that the effects of the
accident are likely to continue and reduces this by the ‘vicissitudes
of life’, i.e. the fact that even if the accident had not happened, the
claimant might not have lived or worked until retirement age.
At this stage, the court has now the annual amount that will
compensate the claimant and the number of years this amount should
be payable. However, to avoid overcompensation, the courts factor in
a rate of return in the investment, called the discount rate, and use
that to assess how much they need to reduce to lump sum. Until
recently, the courts generally assumed a rate of interest of 4-5% per
year.

This was criticized by the Law Commission in 1995, stating that it

was too arbitrary. The Commission recommended that the courts
should use as their guideline the return given to investors on the Index
Linked Government Security (ILGS), which would give a more accurate
picture of the kind of returns claimant could hope to get on their lump
sums.
Responding to this, the Damages Act 1996 provided that the Lord
Chancellor can prescribe a rate of interest and in 2011, the rate was
set at 2.5%. The Act also provides that a court may use a different
discount rate if any party to the proceedings show that it is more
appropriate to the question (s.1(2)).

Warriner v Warriner
The claimant’s lawyer argued that the 2.5% discount rate was
undercompensating, and a different discount rate should be used
because the amount claimed was large and the claimant’s life
expectancy was long. The court refused to hear the evidence, as this
was not the kind of circumstances intended to be covered by s.1(2).

Cooke v United Bristol Healthcare NHS Trust; Sheppard v

Stibbe and another; Page v Lee
The Court of Appeal heard three similar cases in which the claimants
had all been injured and were likely to need care for the rest of their
lives. They argued that the conventional discount rate would
undercompensate these claimants, as the cost of care were increasing
faster than the effects of inflation. The court held that it was not
possible to take this evidence. Parliament had authorized the Lord
Chancellor to set the rate, he had done so, and the courts had to
respect that.

5. CALCULATING LOST YEARS

The courts take into account how long a person could normally be
expected to live, bearing in mind the ‘vicissitudes of life’, to calculate
how long the claimant will need their income for. If, as a result of the
tort, the claimant is expected to die earlier than they otherwise might
have, it would clearly be unfair simply to reduce the damages, when
this was the defendant’s fault and therefore should not benefit them.
In Pickett v British Rail Engineering, it was decided that the correct
approach was to use the claimant’s predicted life expectancy if the
accident had not happened, but reduce it by the amount that they
would have spent on supporting themselves during that time.

The fact that damages paid in a lump sum may disadvantage the
claimant particularly where the effects of injury worsen after the award
is made. As well as the future prospects of the claimant’s health, the
lump sum system requires the court to predict what the claimant’s
employment prospects are likely to be, this can never be known, so
the compensation may well turn out to represent much more or less. It
is impossible to predict the result of inflation on the award.
Furthermore, there is no way to ensure that the claimant uses the
lump sum in such a way as to make sure it provides a lifelong income.
The courts’ new power to order structured settlements may go some
way towards solving this problem, depending on whether they restrict
its use to extend it more widely.

Non-pecuniary losses
Non-pecuniary losses are losses which are not financial, although the
courts can only compensate for them in a financial way. The Law
Commission’s (1995) report, “How Much Is Enough?” argued that
compensation paid for these losses had fallen behind inflation and
should be increased, and the bigger awards were undercompensating
the claimants.

Heil v Rankin and another and Other Appeals

The House of Lords agreed with the Lord Commission that there was a
problem. They held that that only those awards worth 10,000 or more
needed adjustment, with the biggest problem being at the very top
end, called the ‘catastrophic injuries’. Where previously 150,000 was
the top level, this should be raised to 200,000.
The court in Simmons v Castle, announced a further rise of 10% in the
level of general damages for all civil claims. Non-pecuniary losses fall
into the following heads of damage:

1. THE PRIMARY INJURY

Firstly, the primary injury. Damages for the actual injury are usually
calculated with reference to a tariff, so that recognized values are
placed on similar injuries.

2. PAIN AND SUFFERING

Secondly, pain and suffering. Damages will be awarded for any pain
and suffering which results from the injury itself, or from medical
treatment. The claim may cover pain which the claimant can expect to
suffer in the future and mental suffering arising from the knowledge
that life expectancy has been shortened or that the ability to enjoy life
has been reduced.

3. LOSS OF AMENITY
Thirdly, loss of amenity, i.e. where the claimant is unable to enjoy life
to the same extent as before. It may include inability to enjoy sport or
any pastimes the claimant enjoyed before the injury, impairment of
senses, reduction in the chance of finding a marriage partner and
impairment of sexual activity. Calculation of these damages is based
on a tariff laid down by the Court of Appeal.

Damages for loss of amenity are not affected by whether the claimant
is actually aware of the loss, so unconscious claimants may claim
damages as if they had not been unconscious.

West & Son v Shephard

Head injuries left the claimant partially unconscious, paralysed and
there was no hope for recovery. There was evidence to suggest that
she had some awareness of her circumstances and an award of 17,500
for loss of amenity was given.

The principle that a person who is unaware of their loss amenity

can still be compensated for it has been strongly criticised. It is argued
that the compensation cannot actually be used by the unconscious
person, so it seems inequitable that relatives in this situation may end
up with considerably more than the relatives of someone killed
immediately as the result of the tort. But on the other hand, if no such
award was made the court would be treating the claimant as if they
were dead. The Law Commission has recommended that this aspect of
law should be kept, but the Pearson Commission suggested that non-
pecuniary damages should no longer be awarded to unconscious
claimants.

NON-COMPENSATORY DAMAGES
Compensatory damages are carefully calculated to put the claimant in
the position they would have enjoyed if the tort had never been
committed. However, damages may be awarded for different reasons,
and these may be less or more than is required to compensate
directly. There are four types of non-compensatory damages.

1. Contemptuous damages
Firstly, contemptuous damages. Where a court recognizes that the
claimant’s legal rights have technically been infringed, but believes
that the claim should not have been brought, it may order
contemptuous damages, which will amount no more than 1p. A
claimant awarded this is also unlikely to recover costs.

2. Nominal damages
Secondly, nominal damages. This is made where there was an
infringement of a person’s legal rights, but no actual damage has been
done. It is a small sum of money, normally 20.

3. Aggravated damages
Thirdly, aggravated damages. Where a defendant has behaved in such
a way that the claimant has suffered more than would normally be
expected, the court can show its disapproval by awarding damages
which are higher than normal.

Khodaparast v Shad
A woman sued her ex-boyfriend for libel after he created photos
showing her advertising pornographic telephone lines. In court, the
defendant made a number of other untrue claims, including that she
slept around, associated with prostitutes and had an improper
relationship with her solicitor. Hence, aggravated damages were
awarded.

Rowlands v Chief Constable of Merseyside

The claimant got into a row with a police officer and was arrested,
handcuffed in front of her children. When asked to have the handcuffs
loosened because they were causing excruciating pain, the police
officer deliberately tugged them, increasing the pain. The court
acquitted the claimant, and she sued the police for assault, false
imprisonment and malicious prosecution. The court decided that she
should receive aggravated damages, despite the risk of double
compensation, given the humiliation and distress she suffered and the
willingness of the police to give false evidence.

4. Exemplary damages
Fourth, exemplary damages. These also involve paying the claimant
more than would normally be appropriate, but they differ from
aggravated damages in that their purpose is actually to offer a serious
punishment to the defendant, and to deter others from behaving in the
same way. The use of exemplary damages are carefully controlled by
rules laid down in Rookes v Barnard. The case must fall within one of
the categories: statutory authorisation, conduct calculated to make a
profit and oppressive conduct by government servants.

1. STATUTORY AUTHORISATION
There are a few cases in which exemplary damages are expressly
allowed by statute.

2. CONDUCT CALCULATED TO MAKE A PROFIT

There are cases, usually involving defamation, where a defendant may
calculate that it is worth committing a tort, even at the risk of being
sued, because the profit to be made will exceed the cost of
compensating. It is not necessary for the defendant to calculate
precisely the potential profit and compensation so long as they
deliberately risk causing damage in order to make a profit.
 Cassell & Co v Broome
The defendant published a book about a wartime convoy with which
the claimant was involved. The claimant successfully sued for libel and
was awarded exemplary damages, taking into account the profit which
the defendants would have made.
3. OPPRESIVE CONDUCT BY GOVERNMENT SERVANTS
Exemplary damages may also be awarded where there has been
oppressive, arbitrary or unconstitutional action by government
servants. The purpose is to mark the fact that government servants
are also supposed to serve the community, and must use their powers
accordingly.

Huckle v Money
The claimant was detained under a search warrant. The detention was
for six hours, and involved no ill-treatment. The court upheld
exemplary damages, stating that entering a person’s home with a
search warrant that did not have his name on it was a serious breach
of civil liberties.

Muuse v Secretary of State for the Home Department

The court heard that during the claimant’s detention, his treatment
had been malicious and oppressive. The Home Office had ignored the
obvious evidence that the claimant was Dutch, and when the Office
eventually accepted that there was no right to deport him to Somalia,
still kept him in detention. The court held that exemplary damages
were justified in order to show strong disapproval of the officials’
behaviour.

Since the aim of tort damages is to compensate the claimant, and

not punish the defendant, compensation does not take into account
the degree of fault involved in the defendant’s action. As a result, a
defendant who makes a momentary slip may end up paying the same
damages as one who shows gross carelessness. The system now
seems unable to provide justice for the claimant without injustice to
some defendants.
Equitable Remedies
INJUNCTIONS
Injunction are the other main remedy the courts can order in tort
cases, and are mainly used to deal with continuing or repeatable torts
such as defamation and nuisance. In issuing an injunction, the court
prohibits the defendant from committing, continuing or repeating a
particular tort.

Injunctions are an equitable remedy, which means they are not

available as of rights to a successful claimant, but are issued at the
discretion of the court, where it is considered to be ‘just and
convenient’ (Supreme Court Act 1981, s. 37).

An injunction will not be granted where damages would be an

adequate remedy.

Most injunctions prohibit the defendant from doing something: these

are called, prohibitory injunctions. Injunctions may also
be mandatory, in which case they order the defendant to do
something. These are subject to special guidelines, laid down in
Redland Bricks Ltd v Morris.

Redland Bricks Ltd v Morris

The defendants had been digging on their own land, and this work had
caused subsidence on the claimants’ land, and made further
subsidence likely if the digging continued. The claimants were awarded
damages for the damage that had already been done, and a
mandatory injunction ordering the defendants to restore support to
their land. This restoration work was to cost more than the total value
of the claimants’ land, and the defendants appealed against the
injunction. The HOL allowed the appeal and laid down some general
guidelines on the issue of mandatory injunctions, although they
stressed that the decision on whether to grant such an order remained
one for the court’s discretion, bearing in mind the individual
circumstances of a case.
In general, they said, mandatory injunctions should be ordered only
where damages would not be adequate to remedy the harm done to
the claimant. Where the defendant has acted reasonably, though
wrongly, the fact that carrying out a mandatory injunction would, as in
the case of Redlands, be very costly may be a reason not to grant such
an injunction; however, if the defendant has acted unreasonably, and
particularly if the defendant has in some way tried to gain an
advantage over the claimant or the court, the cost of carrying out the
injunction should not be taken into account.

Should a mandatory injunction be ordered, the court must ensure that

the defendant know precisely what is to be done, so that accurate
instructions for carrying out the work can be given.

Interlocutory injunctions
In some cases, a court may order an injunction (which may be either
mandatory or prohibitory) before the case is actually heard. This is
called an interlocutory or interim injunction, and is designed to prevent
potential harm, or continued harm, during the period before the case
comes to court (an injunction granted as a result of a decided trial is
called a perpetual injunction).

The fact that an interlocutory injunction has been granted does not
mean that the claimant has won; when the case is tried, the defendant
may be found to have been in the right, and the injunction unjustified.

For this reason, the courts do not give interlocutory injunction easily,
and in some cases the claimant may be required to give an
undertaking in damages – a promise to pay damages for any loss
incurred by the defendant while the injunction was in force, should the
claimant lose the case.

In American Cyanamid Co v Ethicon Ltd, guidelines for the use of

interlocutory injunctions were laid down.
 The claimant does not have to establish a prima facie case, but
the court should be satisfied that there is a ‘serious question’
to be tried.
 If damages are an adequate remedy for the alleged wrong, no
interlocutory injunction should be granted.
 On the other hand, if the adequacy of damages is
questionable, the court should decide on the basis of the
balance of convenience, weighing what the claimant stands to
gain from an interlocutory injunction against what the
defendant stands to lose.
One of the most obvious potential uses for interlocutory injunctions is
that of libel cases, as clearly once a statement has been made public
the damage can never truly be undone. However, in assessing whether
to allow interlocutory injunctions, the courts are very aware of the
need to protect free speech, and such injunctions are in practice
uncommon in libel cases.

DAMAGES IN LIEU OF INJUNCTION

Damages in lieu of injunction

Shelfer v City of London Electric Lighting Co.

Legal principle: A court should exercise its discretion to award
damages instead of an
injunction where an injunction would be oppressive to the defendant,
and the harm done is minor and can be compensated for with
damages. The High Court has a discretion to order damages instead of
an injunction. This discretion should generally be exercised where an
injunction could have been issued, but would be oppressive to the
defendant, and the harm done to the claimant is minor, and capable of
being calculated in and compensated by money.
An example of the way the courts apply Shelfer can be seen in Daniells
v Mendonca.

Daniells v Mendonca
The parties were neighbours, and Ms Daniells had had a bathroom
extension built on her property. Some years later, she went away for
three months, and when she came back, she discovered that Mr
Mendonca had built an extension too, which was supported by the wall
of hers and joined to her roof. The London Building (Amendments) Act
1939 requires that neighbours be informed of plans to build, but Ms
Daniells had known nothing of the work that was taking place while she
was away. Mr Mendonca admitted trespass, but the issue of remedies
could not be agreed; Ms Daniells wanted an injunction, but Mr
Mendonca argued that this was a case where Shelfer suggested that
damages should be ordered instead. Applying the Shelfer principles,
the court allowed the injunction: it was true that the extent of trespass
was small, but this was offset by the fact that it was permanent, and
other additions were planned; the jury could be compensated for by
money, but this would not be a small amount, given the nuisance, the
fire danger and the risk of structural damage; and the injunction could
not be said to be oppressive to the defendant, given his own behaviour
in building the extension in the first place, and failing to comply with
the Act. The issue of when an injunction will be considered ‘oppressive’
has been discussed in two recent cases.

Jacklin v Chief Constable of West Yorkshire

West Yorkshire police had some construction work done, which
involved placing a container on land over which the claimant had a
right way. Although it was still possible to walk across the land, the
container meant that the claimant could not drive across it. The
claimant complained against the proposed alterations but the police
went ahead anyway. Three years after the container was first put
there, the claimant sued in nuisance, and wanted an injunction to get
the container removed. The police argued that an injunction would be
oppressive, given the time the claimant had taken to sue, and the
difficulty, three years on, of putting the site back to the way it was. The
COA disagreed. The trial judge had apparently taken note of the fact
that the police had ignored the claimant’s protests and gone ahead
with the work without even checking what the problem was, and, as
a result, considered that it was not unfair for them to be made to undo
the damage. The COA held that there was no reason to disturb that
decision.

Regan v Paul Properties

The defendant was constructing a building near the claimant’s
maisonette. Part of the planned building would have reduced the light
coming into the claimant’s living room, and this would reduce the
value of the house by around 5,000. The claimant wanted an injunction
forcing changes to the plans, which would have reduced the value of
the new building by around 175,000. Despite complaints from the
claimant, and his assertion that he did not want damages but wanted
to keep the light, the defendant continued with the original plans, and
by the time the case came to court a large part of the building had
been completed. The defendant claimed that an injunction would be
oppressive because it would cost a substantial amount of money to
change the building after so much work had been done. The COA
disagreed: the losses were only substantial because the defendants
had pressed on with the project, and it was therefore not oppressive to
order an injunction.
A recent decision of the Supreme Court suggests a less strict approach
to the use of injunctions may be emerging.
 In Coventry v Lawrence, Lord Sumpton suggested that the
Shelfer approach was out of date, and ‘devised for a time in which
England was much less crowded, when comparatively few people
owned property, when conservation was only beginning to be a public
issue and when there was no general system of statutory development
control’. Giving the leading judgement, Lord Neuberger said that
courts should not feel bound to grant an injunction simply because all
four of the Shelfer conditions are not fulfilled.