Damages Flashcards
Difficulties with compensatory damages?
How do we value solatium?
How do we value physical injury?
What are nominal damages?
No loss. England - torts actionable per se. Only infringement of personality rights where wounded feelings presumed. Trespass in England.
No substantial loss or injury. Vindicatory.
Why do we not like nominal damages?
Can’t calculate! Really arbitrary
Declarator just as good?
BUT surely you should get something, you have lost out because of infringement.
What are exemplary damages?
Punitive. Rookes v Barnard
1) Oppressive, arbitrary or unconstitutional actions by servants of the gov’t
2) cases in which defendant sought to profit by his tort
Advantages of Exemplary
Victims find these actions therapeutic. Know defendant is going to pay up.
Only last resort, not used all the time.
Only supplementing criminal system, not that bad that also punitive.
Disadvantages of exemplary
Confuse civil and criminal but Burrows says this isn’t that important. Both sort of mixed by deterrent function already!
Unmerited windfall for the claimant
Punitive role is wrong - not compensatory
Beever says abolish
Reform proposals for Exemplary
Retain but widen to any tort where defendant had deliberately & outrageously disregarded plaintiff’s rights
Quantum and availability subject to tight controls
Not for multiple plaintiffs or defendants
What are aggravated damages?
Injury to plaintiff’s role or dignity.
Higher damages. You tend to feel worse if someone has done something intentionally to hurt you.
Not injured feelings
CONDUCT OF DEFENDER NOT IMPACT!!
Can’t really divorce the one from the other tbh.
Advantages of aggravated?
You pay more if you have acted in a particularly bad and disrespectful way - punitive
Also, deterrent function
Restitutionary Damages
Courts haven’t really taken a consistent view as to when restitution for a wrong should be available. Unjustified enrichment
Allowed where skimping performance and profit by breach of contract
Do we allow restitutionary in Scotland?
Hogg
Can’t ever recover for what defender gained rather than what you lost.
Goes against restitutio in integrum
Unjustified enrichment does cover a lot of this material.
Only time we have anything akin to this is disgorgement for lost profits and passing off e.g. Real McCoy
Issues with restitutionary damages?
Multiple plaintiffs - hard to attribute gains to each individual impacted e.g. Negligence of Ford with fuel tanks
Multiple defendants - can’t be made to pay as much as any of the multiple plaintiffs would have got alone.
What do the law commission advise on restitutionary damages?
Difficult to lay down statutory guidance where restitutionary damages available.
Not compensation and restitution together - unfair
What are general and compensatory damages?
Restitution for wrongs suffered.
Whole background to damages is compensating loss you have suffered. Making up for loss / harm / damage.
Compensated for loss but no more.
Restitutio in integrum
Difficulties with compensatory damages?
How do we value solatium?
How do we value physical injury?
