Chapter 48-Remedies Flashcards
Describe injunctions
- These are remedies where damages would not be adequate
- They prohibit the defendant from doing something :prohibitory injunctions
- They could order the defendant to do something:Mandatory injunctions
- They mainly apply to defamation or nuisance cases
What is an interlocutory/ interim injunction
This is an order of an injunction before the case is actually hard. This is to prevent potential harm or continued harm
-This type of injunction is rarely given and in some cases the claimant is required to undertake the damages
List the guidelines for interlocutory injunctions
- The claimant does not have to have a ‘prima facie’ case but the court should be satisfied that there is a ‘serious question’ to be tried.
- If damages are adquate, this injunction will not be used
- If damages are inadequate, this injunction can be used by weighing the balance of convenience.
What are damages
- These are remedies that aim to compensate the claimant and place them in the position they would have been in had the tort not occured.
- There are 2 broad categories
>Compensatory
>Non-compensatory
Describe mitigation
- This means the defendant will not be liable for compensatory damages regarding loss that could have been prevented by the claimant.
Compensatory damages
Non-pecuinary damages
- The main aim is to provide fair compensation.
- This does not involve an accurate estimate of the amount of compensation the claimant should be awarded.
- This can include
1.Pain and suffering: this can arise from the injury or medical treatment
2.Any amount for loss of amenity: this can be claimed where the claimant is unable to enjoy life to the same extent as before
3.Future losses: This is a loss of earnings and the cost of care
Compensatory
Pecuniary damages
This can include the following:
- Pre-trial expenses
- Expenses incurred by third parties: such as a partner or relative who has given up work to care for the claimant
- Pre-trial loss of earning
What are non-compensatory damages
- This type of damages are connecteed with other aims such as deterrence and retribution
>The award of large amaounts of compensation attempts to ensure that accidents are avoided
>Retribution is more appropriate as its aim allows claimants to feel right as the law has been on their side and justice has been served.
Describe the 4 types of compenstory damages
1.Contemptuous damages: This is awarded when the claimant’s legal rights have been infringed upon but the court disapproves of the claimants conduct and makes it clear that the action shouldnt have been brought
2.Nominal damages: These are given where there has been an infringement of legal rights but no actual damage was caused. The court will award a small amount of compensation
3.Aggravated damage:These are awarded where the claimant suffered more than would normally be expected in a case
4.Exemplary damages:Here the court will award more damages than would normally be appropriate because it is seen as a form of punishment. The case must fall into one of 3 categories :
>Statutory authority
>Conduct calculated to make a profit
>Oppressive conduct by government servants
Issues relating to future losses and death:
- Whoever inherits the claimants estate can make a claim for the losses
- Fatal Accidents Act also allows for a claim by the deceased’s descendants for financial losses and a claim for the bereavement suffered.
How is the amount of compensation calculated
- The annual loss is multiplied by the number of years the loss would have been suffered.
- Survivors could claim for funeral expenses
Policy issues and reforms:
- If the claimant does not have insurance, they are not likely to be compensated unless the defendant has assets that can be used to pay compensation.
- In cases where aggravated or exemplary damages are awarded, the courts have to show that damages will be awarded according to what is just and fair.
