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Tort | Negligence

Remedies: Damages

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  • 3 types of remedies in tort: damages, injunctions & restitution of property
  • damages most commonly claimed remedy

The one action rule

  • a set of facts may only give to rise to one action, therefore damages awarded must be for past, present & future losses
  • there are 3 exceptions to the one action rule

Violation of two rights

  • claimant (C) may bring more than action if wrongful act has violated 2 distinct & separate rights

    Brunsden v Humphrey (1884) 14 QBD 141

    • plaintiff (P) allowed to bring 2 actions because he had 2 distinct rights violated & he could claim for each

Continuing tort

  • C may bring more than 1 action if there's a continuing tort (often nuisance or trespass)

Torts actionable only on proof of damage

  • C may bring more than 1 action if wrongdoing produces separate, successive & distinct damage
  • in Negligence: a separate cause of action will arise for each damage suffered

Measuring damages

  • principle restitutio in integrum (putting the claimant in the same position they would have been if the tort had not been committed)
  • damages aim to compensate C based on fault of defendant (D)

    Livingstone v Raywards Coal Co (1880) 5 App Cas 25

    • Lord Blackburn: .. should as nearly as possible get that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong...

Mitigation of loss

  • C should not profit from incident, so duty to mitigate means C must take all reasonable steps to minimise their losses

    Marcroft v Scruttons [1954] 1 Lloyd's Rep 395


    • P injured by D's negligence, however, P then refused to attend hospital & his injuries worsened


    • how should the damages be assessed?


    • P had duty to mitigate his losses & therefore, losses subsequent to refusal to attend hospital not recoverable

Classification of damages

General and special damages

  • general damages: determined by court, as not capable of being precisely calculated at time of trial
  • strictly: damages presumed to flow from torts which are actionable per se (without the need to prove loss or damage)
  • special damages: losses which can be precisely calculated at time of trial
  • strictly: damages C can prove as part of their action (in Negligence: actual loss)
  • classification as general or special has practical relevance for interest calculations

Nominal damages

  • nominal damages: awarded in torts which are actionable per se, therefore not in Negligence (as requires loss or damage to be proved)

Exemplary or punitive damages

  • exemplary or punitive damages: punish D & deterrence, can award high sums in extreme cases
    • court may only award exemplary damages if:
      statute expressly authorises,
      oppressive, arbitrary or unconstitutional action by government ,
      or D's conduct calculated to make profit which exceeds potential compensation
    • D published libellous book about Navy officer in World War II
    • could exemplary damages be awarded?
    • £25 000 exemplary damages awarded: D acted on cynical calculation that profit would exceed compensation payable
    • House of Lords: reaffirmed categories for exemplary damages in Rookes v Barnard [1964]
    • highlighted exemplary damages should be awarded, if any of category satisfied, irrespective of cause of action
    • C unlawfully detained by D
    • could exemplary damages be awarded?
    • Thomas LJ: .. this case was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous. It called for the award of exemplary damages by way of punishment, to deter and to vindicate the strength of the law...

Aggravated damages

  • aggravated damages: aim compensate C for additional suffering incurred because D's ill-motivated actions
    • P wrongfully arrested & unlawfully detained, additional evidence D deliberately humiliated & insulted P
    • how much should be awarded in aggravated damages?
    • Lord Woolf: .. the award for aggravating circumstances should not normally exceed the amount of the basic damages (except where the basic damages are modest) and it would require the most exceptional circumstances for aggravated damages to be as much as twice the basic damages...
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