Remedies And Defences

Question 1

Compensatory damages

Answer 1

In a fort claim the court can award a successful claimant compensation for the injuries he has suffered or damage to his property. The award is known as damages.

Question 2

Calculating and awarding damages

Answer 2

The purpose of damages:
“to put the claimant in the position he would
have been had the negligent act not excessed
occurred”.

Damages fall into 2 categories:
1) Special damages:
These are financial (pecuniary) damages that occur between the date of the negligence and the start of the trial. They include:
1. medical expenses
2. loss of earnings
3. adaptions to home or vehicle
4. replacement or repair costs

2) General damages:
These are divided into financial (pecuniary) and non-financial (non-pecuniary).
Financial losses include:
1. future medical expenses
2. Future loss or earnings
3. Care cost
Non-financial losses include:
1. pain & suffering
2. loss of amenity
3. injury itself
4. loss of congenial employment

Question 3

Mitigation of loss

Answer 3

Where someone is entitled to be compensated for their loss, they are under a duty to keep the loss to a reasonable level. This is called ‘mitigation of loss’.

Damages can be awarded by way of a lump sum or structured settlement.

lump sum - a one time payment.

Although most payments are made by way of a lump sum, under the Damages Act 1966, if both parties agree, payments can be made periodically (structured settlements). These can be made monthly, yearly, for life or for a specified term.
Advantages of structured settlements:
- Greater certainty and security.
- The claimant does not have to manage a sum of money.
- It can protect a claimant whose condition becomes worse.

Lump sum:
- one off payment
- awarded by the court
- can be unfair for a C whose condition becomes worse.

Structures settlement:
- paid over a period of time
- agreed between parties. The court cannot order a structured settlement
- the amount can be reassessed at regular intervals

Question 4

Injunctions

Answer 4

An injunction is a court order, either to prevent a defendant from doing something or to force a defendant to do something.

Prohibitory injunction:
- An order from the court preventing D from committing a fort or from continuing it.
- Usually in nuisance cases where C wants the activity to stop.
- Watson v Croft Promo-Sport Ltd

Mandatory injunction:
- An order from the court to compel to act in a particular way.
- Usually sought where C wants D to rectify the damage caused.
- Jacklin v Chief Constable of West Yorkshire

Partial injunction:
- An order to limit D’s activities or reduce them
- Usually granted where the tort has some public benefit.
- Kennaway v Thompson

If public interest outweighs the claimant interest, the court may decide to award damages in lieu of an injunction:
Miller v Jackson (1977)