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Remedies in Tort Flashcards

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1
Q

What are the two main remedies in tort?

A
  • Damages

- Injunctions

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2
Q

Describe mitigation of loss

A
  • A claimant who has suffered a loss as a result of a tort is entitled to damages for any losses. However, the claimant is expected to take reasonable steps to mitigate any losses
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3
Q

Give a case that concerned mitigation of loss

A
  • Ronan v Sainsbury’s (2006)
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4
Q

What happened in Ronan v Sainsbury’s (2006)? What was held?

A
  • Claimant injured at work due to the defendant’s negligence. His injuries meant that he couldn’t stay in his new banking job and so he decided to go to university
  • Defendants argued that proper mitigation of loss would have required the claimant to resume his old jo with them and drop out of university
  • HELD - no lol. Unreasonable because he only decided to go to university because of his injuries
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5
Q

What principle was established in South Australia Management Corporation v York Montague Ltd (1996)?

A
  • A defendant will only be liable for the consequences arising from negligent performance of a duty taking into account things like foreseeability and remoteness
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6
Q

If a property is completely destroyed, what does the defendant have to pay?

A
  • The cost of completely replacing the house
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7
Q

If the house is only damaged so far as property is concerned, what will the defendant have to pay?

A
  • The cost of repair and the amount by which the property has fallen in value
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8
Q

What are the 6 main categories of damages payable in tort?

A
  • General damages
  • Special damages
  • Nominal damages
  • Contemptuous Damages
  • Aggravated Damages
  • Exemplary Damages
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9
Q

What are general damages? Example?

A
  • Damages which are not capable of being calculated before the trial and the court has to decide them
  • The loss of future earnings and for pain and suffering
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10
Q

Give a case for general damages

A
  • Giambrone v JMC Holidays (2002)
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11
Q

What happened in Giambrone v JMC Holidays (2002)? What was the issue? What did the defendant say? What was held?

A
  • Mass food poisoning at a resort in Majorca
  • ISSUE - what value do you place on care?
  • Defendant said that awarding a sum for parental care is unfair because they should do it anyway
  • HELD - Damages payable because of the extent of the poisoning as the children needed extra care
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12
Q

What are special damages? Example?

A
  • Damages which are capable of being calculated at the time of the trial
  • Loss of earnings and medical expenses before trial
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13
Q

What are pecuniary losses? Example?

A
  • Pre-trial expenses - actually and reasonably incurred since the date of the accident and up to the date of trial
  • Loss of expenses, damage to clothing and belongings and especially medical costs
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14
Q

Give two cases that concern expenses incurred on one person’s behalf by another

A
  • Donnelly v Joyce (1973)

- Hunt v Severs (1994)

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15
Q

What was the issue in Donnelly v Joyce? What was held?

A
  • Can a child recover lost earnings forfeited by a parent in order to stay home and care for them?
  • HELD - yes. These losses are directly consequential and stemmed directly from the accident
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16
Q

What was held in Hunt v Severs (1994)? What did the court say?

A
  • Following the negligence of the defendant the claimant was allowed to recover the cost of care that she would have had to pay for, despite the fact that she had married the defendant and he provided the care for her
  • Court said not allowing her to recover the cost of care would be unfair and against public policy
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17
Q

How is future loss of earnings typically calculated? What do the courts sometimes do when this is calculated for a whole life term? What else will the courts make an allowance for? Seen in what case? What is this called?

A
  • Calculated by reference to a calculation that takes account of how long a claimant is likely to live and what they would have earned had the negligence not occurred
  • The courts often come up with a figure that will allow the claimant to buy an annuity - a financial package that pays an amount on a monthly basis
  • Will also make allowance for the fact that the claimant’s prospects may well have improved but for the accident
  • Seen in Doyle v Wallace
  • Called a multiplicand
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18
Q

What happened in Doyle v Wallace?

A
  • Court had to decide calculation for future loss of chance of a careworker who had been about to commence training as a teacher
  • Court agreed it had to be realistic and apply a ‘discount rate’
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19
Q

What was decided in Smith v Manchester?

A
  • Future lost earnings is an accepted head of loss of chance in monetary and career terms
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20
Q

Explain calculating lost years

A
  • The courts have to make this estimate, which is usually an attempt to work out how long the claimant would have lived had the accident not occurred, with a view to working out what their earning would be for that period
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21
Q

Give two cases for calculating lost years

A
  • Pickett v British Rail (1978)

- Hall v Rankin (2000)

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22
Q

What principle was established in Pickett v British Rail (1978)?

A
  • That damages for lost years could include a sum to cover loss of earnings in that period, whatever the age of the claimant
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23
Q

What did the court say in Hall v Rankin (2000)?

A
  • It is possible to increase damages to take allowances of the fact a claimant might be on a no win no fee agreement and would therefore need to pay out a success fee to their lawyer when they won the claim
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24
Q

Name two other heads of loss

A
  • Pain and suffering

- Loss of amenity (the right to do something, can even be a right to a sex life)

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25
Q

Explain nominal damages

A
  • Awarded when there has been little or no harm caused and the court wishes to award a very small amount
  • Only used for torts that are actionable per se
26
Q

Explain contemptuous damages

A
  • Awarded when the level of harm has been low and the court believes that an action should not have been taken even though the defednant is liable under tort. Unlike nominal damages, these damages can be as low as 1p
27
Q

Explain aggravated damages

A
  • Damages awarded over and above that needed to put the claimant back in the position that they would have been in had the tort not occurred. They represent an additional sum of money because the initial harm was made worse because of some aggravating factor
  • Mostly awarded in cases of defamation and trespass to the person
28
Q

Give two cases for aggravated damages

A
  • Khodarapast v Shad (1999)

- Rowlands v CC of Merseyside (2006)

29
Q

What was held in Khodarapast v Shad (1999)?

A
  • Aggravated damages deemed appropriate because of the defendant’s false rumour mongering about the immoral conduct of his ex-partner which involved photoshopping her face onto pornographic images
30
Q

What was held in Rowlands v CC of Merseyside (2006)

A
  • Aggravated damages were payable for the wrongful arrest of the claimant, as well as pain caused by handcuffs and the shame of being arrested in front of her children and family
31
Q

Explain exemplary damages

A
  • Sometimes called punitive damages
  • Purpose is to punish the defendant for committing the tort
  • Only awarded in certain circumstances and meant to deter others from committing the same offence
32
Q

Give a case for exemplary damages

A
  • Rookes v Barnard (1964)
33
Q

Why is Rookes v Barnard (1964) important?

A
  • Lord Devlin identified three circumstances when exemplary damages could be imposed
34
Q

What are the three circumstances when exemplary damages can be imposed as set out by Lord Devlin in Rookes v Barnard (1964)?

A
  • Oppressive, arbitrary or unconstitutional action by servants of the government
  • Where the defendant’s conduct was calculated to make a profit which may exceed the compensation payable to the claimant
  • Where a statute authorises the payment of exemplary damages
35
Q

Why do some argue that exemplary damages should not be allowed?

A
  • Because the purpose of civil law is not to punish, as that it the purpose of criminal law
36
Q

Give two cases that concerned conduct designed to make a profit and the awarding of exemplary damages

A
  • Axa Insurance v Financial Claims Solutions Ltd (2018)

- Casell & Co Ltd v Broone (1972)

37
Q

What was held in Axa Insurance v Financial Claims Solutions Ltd (2018)?

A
  • Axa successfully sued the defendant for submitting fake insurance claims
38
Q

What was held in Casell & Co Ltd v Broone (1972)?

A
  • Claimant successfully sued in libel and was awarded £25k in exemplary damages because the defendant would have made a sizeable profit from selling the book
39
Q

Give four cases that concerned oppressive conduct by government servants and exemplary damages

A
  • Huckle v Money (1763)
  • Muuse v Secretary of State for the Home Department (2010)
  • John v Mirror Group Newspapers (1995)
  • Thompson v Met Police Commissioner (1997)
40
Q

What happened in Huckle v Money (1763)? Held?

A
  • Claimant was detained under a search warrant. He was detained for 6 hours but otherwise well treated
  • Court awarded £300 exemplary damages, stating that entering a person’s house with a warrant that doesn’t even have their name on it was a serious breach of the claimant’s civil liberties
41
Q

What was held in Muuse v Secretary of State for the Home Department (2010)?

A
  • Somalian man awarded exemplary damages for being unlawfully detained because he was deemed not to have a right to remain even though he had an EU passport
42
Q

What was held in John v Mirror Group Newspapers (1995)?

A
  • Exemplary damages could only be awarded if the publisher of a defamatory statement had no genuine belief that the published info was true
43
Q

What are the problems with damages? (5)

A
  • Cost
  • Lump sums (inflation etc)
  • Do the damages actually reflect the degree of fault of the parties?
  • Loss of amenity hard to calculate
  • Doubt remains over damages for bereavement
44
Q

What is an injunction?

A
  • A court order that required the defendant to behave in a certain way
45
Q

What are the two main types of injunction?

A
  • Prohibitory injunction - instructs the defendant to not behave in a certain way
  • Mandatory injunction - instructs the defendant to take action to rectify the situation created by the tort
46
Q

What three torts are injunctions mostly used for? What two torts do they tend not to be used for?

A
  • Nuisance
  • Trespass to Land
  • Defamation
    and then
  • Negligence
  • Occupier’s Liability
47
Q

In what case did the court lay down guidelines on when mandatory injunctions should be awarded?

A
  • Redland Bricks v Morris (1970)
48
Q

What are the two guidelines laid out in Redland Bricks v Morris (1970) on when mandatory injunctions should be awarded

A
  • When damages would not be adequate to remedy the harm done to the claimant
  • Also, the expense associated with and flowing from a mandatory injunction is not a reason not to award it
49
Q

What is a quia timet injunction?

A
  • Injunction obtained prior to the commission of a tort
50
Q

The circumstances when a quia timet injunction may be granted was stated in what case? What are they? (3)

A
  • Fletcher v Bealey (1884)
  • Danger must be imminent
  • Potential damage must be substantial
  • The only way the claimant can protect themselves is through a quia timet
51
Q

What is an interim injunction? Also know as?

A
  • Interlocutory injunction
  • May be granted once an action has begun but before the main court hearing
  • Designed to stop any further harm happening to the claimant/their property in the period between the start of legal proceedings and the date of trial
52
Q

In what case were the conditions for granting an interim injunction stated? What are they? (2)

A
  • America Cyanamid v Ethicon (1975)
  • There must be a serious issue to be tried
  • The ‘balance of convenience’ must favour the granting of the injunction
53
Q

What case established key rules as to when damages ought to be considered in lieu of an injunction? What are they? (4)

A
  • Shelfer v City of London Electric Lighting Co (1895)
  • When the injury to the claimant’s legal rights is small
  • Where the loss is capable of being calculated in money terms
  • Where a sum will cover the loss incurred
  • It would be simply oppressive to award an injunction
54
Q

What happened in Daniel v Mendonca (1999)? Held?

A
  • Defendant built extension to his house that encroached on the claimant’s land and also posed a fire risk
  • HELD - court awarded injunction, applying Shelfer
55
Q

What happened in Jacklin v CC of West Yorkshire? Held?

A
  • Police force that was having building works done had obstructed a driveway that the claimant used to enter his property
  • HELD - because of the defendant’s behaviour (no attempt to clear the driveway) the court decided it would not be oppressive or unfair to grant the claimant an injunction
56
Q

What happened in Regan v Paul Properties? What did the defendant say? Held?

A
  • Claimant whose neighbour had constructed abuilding that was cutting off light to his building applied for an injunction for the building works to not only cease, but for what had already been built to be pulled down
  • Defendant said injunction not necessary and would be much more expensive and oppressive
  • HELD - Costs would only be high because the defendant had disregarded the wishes of the claimant and so an injunction was granted
57
Q

A claimant will not be awarded an injunction unless what?

A
  • They can establish that damages would not be an adequate remedy
58
Q

What are three of the maxims of equity?

A
  • One who seeks equity must do equity
  • Equity does nothing in vain
  • Delay defeats equity
59
Q

What does one who seeks equity must do equity mean?

A
  • Injunctions will not be granted if the claimant has acted unfairly
60
Q

What does equity does nothing in vain mean?

A
  • The court will not award an injunction if the defendant will be unable to comply with its terms
61
Q

What does delay defeats equity mean?

A
  • The court is unlikely to award an injunction where there has been an unreasonable delay in asking for an injunction

Law (45 decks)

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