8. Remedies

Question 1

two main types of remedies

Answer 1

1) damages (most common)
2) injunctions

Question 2

aim of damages

Answer 2

put C back into the position he would have been in had the tort not occurred

Question 3

two types of damages

Answer 3

compensatory damages

non-compensatory damages

Question 4

what are compensatory damages considered for

Answer 4

• personal injury
• damage to property
• economic loss

Question 5

how can compensatory damages be paid

Answer 5

lump sum

structured settlement

Question 6

types of damages

Answer 6

(1) special damages

(2) general damages
- (a) non-pecuniary damages
- (b) pecuniary damages

Question 7

special damages

Answer 7

damages awarded for expenditure actually incurred by C as a result of Ds negligence

can be calculated precisely

eg, loss of earnings pre-trial

can be:
- medical expenses: private healthcare Law Reform (Personal Injury) Act 1948
- loss of earnings: actual earnings lost up to the start of the trial
- property: repair costs, diminution in value, recover market price at time of destruction
- special adaptions (Povey v Rydal School)

Question 8

general damages

Answer 8

‘damages at large’ to be estimated by the court

the amount cannot be calculated precisely

can be:

(1) pain and suffering and personal injury
‘tariff’ system used to work out the ‘price’ of each injury
- Guidelines for the Assessment if General Damages in Personal Injury Cases
- Kemp & Kemp: Quantum of Damages

(2) loss of amenity
- damages for reduction of Cs enjoyment of life
- physical or mental impairment which Cs injury causes them
- eg sport, worry about impending death

(3) loss of future earnings
- use calculation: multiplier (no of earning years left) x multiplicand (net annual loss)

(4) future care
- eg. future nursing care, house adaptions, kiss if wages of a relative who gives up job to care for C

Question 9

pecuniary damages

Answer 9

damages awarded for the loss of a calculable sum of money

usually decided into past and future

eg: loss of earnings pre-trial, loss of future earnings post-trial

Question 10

non-pecuniary damages

Answer 10

damages awarded for intangible heads of damage which are not capable of precise quantification

eg: pain, suffering, loss of amenity

Question 11

mitigation of loss

Answer 11

C has a duty to take reasonable steps to mitigate their loss (Totham v Kings College Hosp Foundation Trust)

Losses must be reasonable in the circumstances

Question 12

structured settlements

Answer 12

courts can only award a lump sum for personal injury/pain & suffering/loss of amenity

this can be unfair to C or D

BUT, parties can agree a structured settlement to give periodic payments to C
- Damages Act 1976
- courts have no power to order

Question 13

types of non-compensatory damages

Answer 13

(1) nominal
- C has suffered no real loss
- damages awarded in name only

(2) contemptuous
- the case has been won, but the judge feels it should never have been brought and has no real merit

(3) aggravated
- C has suffered more than expected
- eg, it was carried out maliciously

Question 14

injunctions

Answer 14

an order of the court strictly prohibiting of controlling an activity

if the terms of the injunction are not followed, D will be in contempt of the court and can be fined by a fine or imprisonment (up to 2 years)