CIVIL REMEDIES AOS 2 Flashcards
Remedy, aim of remedy, example
In a civil case, the plaintiff normally seeks a remedy, which is a way in which a court can right the wrong that has occurred. The general aim of civil remedies is to restore the party who has suffered loss or injury to the position they were in before the loss or injury occurred. This is usually in the form of a payment of money. If a person is owed a sum of money, they can make a claim through the courts. An injured person may claim a sum of money to compensate for any pain or suffering incurred as a result of the civil wrong.
The two main types of remedies
Damages
Injunctions
Damages
If there is any permanent damage, such as the loss of a limb, it will not be possible to physically restore the injured party to how they were before the injury. An amount of money (called ‘damages’) is therefore given to try to compensate for the damage suffered (sometimes referred to as compensation).
3 main categories of damages
• compensatory damages
• nominal damages
• exemplary damages.
3 types of compensatory damages
Special or specific damages
General damages
Aggravated damages
Special or specific damages
Awarded to compensate the injured party (the plaintiff) for items
that can be calculated objectively and exactly; for example, loss of wages, medical expenses and
hospital expenses.
General damages
Awarded to compensate the plaintiff for pain and suffering. These cannot be
calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life. The plaintiff’s counsel may estimate the amount that would be suitable. The defendant’s counsel may also make submissions about the appropriate amount.
Aggravated damages
Awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.
Nominal damages
Nominal damages are awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss. The court therefore awards a very small amount as compensation. This may occur in a defamation case, where it may be shown that what was said was untrue and there was damage to the reputation of the plaintiff, but the damage was very little.
Exemplary damages
Exemplary damages, sometimes known as punitive damages, are the only example in civil law of a court seeking to punish the defendant. Exemplary damages may be awarded if the defendant’s action was so negligent that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.
The court may also decide to award exemplary damages if the defendant has shown total disrespect for the wishes of the plaintiff.
Injunctions
Injunctions are a civil remedy aimed at stopping someone doing something or making someone do something. They can be granted on a temporary or long-term basis.
2 types of injunctions
Restrictive injunction
Mandatory injunction
Restrictive injunction
This is an injunction stopping someone from doing something; for
example, a person could apply for a restrictive injunction to stop a building being destroyed if it
were in the interests of the nation to preserve it.
Mandatory injunction
This is sought when a person wishes to compel someone to do a
particular act, for example to remove something from their land.
Order for specific performance
An order for specific performance is an order directing someone to complete a contract. This type of civil remedy is normally used in disputes relating to contracts for the sale of land. For example, if person A had completed a contract of sale to sell his or her house to person B and then person A, the seller, changed his or her mind (perhaps because person A’s child wanted to buy the house), person B could obtain an order for specific performance enforcing person A to complete the contract and sell the house to person B.
