Torts Remedies

Question 1

What’re the (potentially) available legal remedies for tort actions?

Answer 1

(1) compensatory damages;
(2) consequential damages;
(3) nominal damages;
(4) punitive damages; AND
(5) restitution damages.

Question 2

Compensatory damages–general requirements

Answer 2

Compensatory damages attempt to put the injured party in the same position it would have been in but for the injury.

To recover, the damages must be:

(1) caused by the defendant (actual cause);
(2) foreseeable (proximate cause);
(3) certain (damages cannot be too speculative); AND
(4) unavoidable (the plaintiff must take reasonable steps to mitigate his losses).

Question 3

Compensatory damages–non-economic losses

Answer 3

Non-economic losses resulting from a tort (i.e. pain and suffering) are NOT subject to the same certainty requirements as standard compensatory damages.

Question 4

Compensatory damages–future earnings

Answer 4

Future earnings are available, and are calculated based on the difference in the person’s earning ability before the injury and the earning ability after the injury; it is NOT based on the person’s actual past earnings.

Question 5

Nominal Damages

Answer 5

Nominal damages are available when the plaintiff has NOT suffered an actual injury, but still wants to establish his rights. Nominal damages are not available where either damages or actual injury is an element to a cause of action.

Question 6

Punitive Damages

Answer 6

Punitive damages are awarded to punish the defendant, and are available if:

(1) the plaintiff was awarded actual damages (expectation or nominal damages);
(2) the punitive damages are proportional to the actual damages; AND
(3) the defendant’s conduct was willful, malicious, or egregious (must be more than just negligent).

Question 7

Restitution Damages

Answer 7

Restitution (also referred to as unjust enrichment) is awarded to prevent unjust enrichment, and is available when one party confers a benefit onto another party. Damages will be awarded based on the value of the benefit conferred upon the defendant.

Question 8

Damages for Fraud

Answer 8

Damages for fraud or deceit are either:

(a) the actual losses suffered – the difference in actual value at the time of the transaction between what the plaintiff gave and what he received; OR
(b) the benefit-of-the-bargain – difference in value between what the plaintiff actually received and what he was fraudulently led to believe he would receive.

Question 9

Damages for Conversion

Answer 9

When a plaintiff has suffered a conversion, he may recover either:

(a) possession of the property; OR
(b) the fair market value of the property at the time of conversion. A plaintiff may also receive reasonable compensation for time spent trying to recover the property.

Question 10

Damages for Trespass to Chattels

Answer 10

In an action for trespass to chattels, the damages awarded are the actual damages suffered, which may include the cost of repairs.

Question 11

Damages for Trespass to Land

Answer 11

In an action for trespass to land, damages are measured by either:

(a) the diminution in value of the property; OR
(b) the cost to repair the property.