3.8 Remedies Flashcards
What are the 2 types of remedies in tort law
Damages and Injuctions
What are damages
Compensation (money)
What is the purpose of damages
To put the C back into the position they were in before the tort had happened
In livingstone v raywards coal company, what did the courts say about damages in relation to injuries
Any injury is to be compensated by damages, should nearly as possible get to the some of money to put the party suffered in the position they were in before they sustained the wrong
How did the courts contradict this in the later case of British Transport Commission v Gourley? What did they say?
Not possible to compensate any amount of money for grevious injury, therefore judges have to make fair estimate taking into account relevent considerations
What are these considerations called?
Heads of damages
What are the 5 different heads of damages
- General Damages
- Special Damages
- Interim and Periodical Damages
- Types of Damages
- Mitigation of loss
What are general damages?
Non-pecuniary, cannot be calculated. Judges decide on how much money to award.
What sort of things are general damages awarded for
- Pain and suffering
- Loss of amenity (loss of something C enjoys, like not being able to do a sport because of broken leg due to D actions)
- Future loss (losing a pension)
- Specific injuries
What covers ‘Pain and suffering’
Past,present or future mental anguish or physical pain.
- Inlcudes fear of pain and future anguish caused by shortened life expectancy
What is a case for ‘Pain and suffering’
Wise v Kaye (1962)
Facts of Wise v Kaye (1962)
C was left unconcious by the actions of D and became unaware of her surroundings.
Held in Wise v Kaye
C could only be awared for the pain and suffering she was aware of. No claim when she was unconsious.
What are special damages
Damages that can be assessed with some accuracy, like loss of earnings.
What is the difference between pre-trail loss of earning and post-trail loss of earnings?
Pre-trail is considered special damages whereas post-trail is considered general damages.
What is the formula created to help calculate post trail loss of earnings
Multiplicand x Multiplier = future loss of earnings
What do the terms multiplicand and multiplier mean in this formula?
Multiplicand - Courts assessment of net anuall loss from the C
Multiplier - period of future loss
What are some of the things in pre-trail expenses the C can claim special damages for?
Loss of earnings up to the date of the trail aswell as the expenses, travel costs and medical expenses.
How is property destruction assessed?
They refer to the market value at the time of the destruction
How is property damage assessed
Damages calculated based of repair costs, unless repair costs is greater than market value.
In Interim and periodical payments, what are interim payments
Payments before the full settlement is awarded.
- In some cases immediate money is required before final calculation of claim
In Interim and periodical payments, what are Periodical payments
damages relating to future pecuniary loss in respect of personal injury. Can be wholly or partial payments
What are the 3 different types of payments
- Nominal damages
- Contemptous damages
- Aggravated damages
What are nominal damages
Paid when no damage has been suffered
What are contemptous damages
awarded when courts fell action should have never been brought
What are aggravated damages
awarded if courts fell like C’s injury has been aggravated by D’s actions, increasing total damages
What is meant by mitigation of loss
C must do everything they can to mititgate their loss.
- D will not be liable if C failed to take reasonable steps to mitigate loss
What is an injuction
Court order to either stop an action happening or forcing D to do something.
What type of remedie is it?
Equitable, meaning its at the discretion of the courts
What are the 3 different types of Injuctions
- Prohibotary
- Mandatory
- Partial
What is a prohibatory injunction
Order from the court preventing D from committing tort or continuing it
- Ususally in nuisance cases
What is a Mandatory injunction
An order from court to compel D to act in paticular way.
- Usually when C wants D to rectify damage caused
What is a Partial injunction
Order to limit D’s activities or reduce them
- Usually when the tort has some weight to public
When would courts decide to award damages in lieu of an injuction
If the public interests outweighs the C’s interests
What is a case that illustrates this
Miller v Jackson (1977)
Facts of Miller v Jackson
Cricket club had been playing cricket for over 70 years, neighbouring land sold for housing construction. C bought a house and brought action of nuisance towards the cricket club.
Held in Miller v Jackson
Public interest of the cricket club outweighed the C’s interest. Court awarded da,ages for any destructiono of property caused by cricket balls.
Can damages be awarded in addition to an injunction?
Yes
