Introduction

There are three types of remedies available to a claimant if a claim in tort is successful: damages, injunctions and restitution of property. Damages are the most commonly claimed remedy.

The one action rule

A set of facts may only give to rise to one action. Therefore, a claimant may not return to court with another claim, if their injury worsens for example. This means the damages awarded must be for past, present and future losses. However, there are three exceptions to the one action rule.

• Violation of two rights

  A claimant may bring more than one action if the wrongful act has violated two distinct and separate rights.

  Brunsden v Humphrey (1884) 14 QBD 141

  The plaintiff was allowed to bring two actions because he had two distinct rights which had been violated and he could claim for each.

• Continuing tort

  A claimant may bring more than one action if there is a continuing tort. This arises most often in the torts of nuisance or trespass.

• Torts actionable only on proof of damage

  A claimant may bring more than action if one wrongdoing produces separate, successive and distinct damage. Therefore, in Negligence, where it is necessary to prove that the damage was caused by the defendant, a separate cause of action will arise for each damage suffered.

Measuring damages

The principle restitutio in integrum (putting the claimant in the same position they would have been if the tort had not been committed) guides the assessment of damages.Damages aim to compensate the claimant based on the fault of the defendant. Claimants may also receive compensation through additional sources, such as insurance or the welfare system.

Mitigation of loss

A claimant should not profit from the incident, as the compensation system aims to restore them to the position they would have been in if the tort had not occurred. Therefore, a claimant cannot claim damages for losses which could have been avoided by taking reasonable steps. The duty to mitigate means that a claimant must take all reasonable steps to minimise their losses.

Classification of damages

There are several types of damages a court may award.

• General and special damages

  General damages are determined by the court as they are not capable of being precisely calculated at the time of trial. They must be stated but no precise figure can be placed on them. General damages are strictly described as damages which are presumed to flow from torts which are actionable per se (without the need to prove loss or damage).

  Special damages are losses which can be precisely calculated at the time of trial and are presented in the form of a calculation. Special damages are strictly described as damages which the claimant can prove as part of their action. Therefore, in Negligence a claim for actual loss is classified as special damages.

  The classification of damages, as general or special, has practical relevance for the calculations relating to interest payments.

• Nominal damages

  Nominal damages are awarded in torts which are actionable per se. Negligence requires the loss or damage to be proved therefore, nominal damages do not apply in Negligence claims.

• Exemplary or punitive damages

  If it is particularly difficult to assess he damages that should be awarded to a claimant, in monetary terms, then the courts can impose exemplary or punitive damages. The courts use these damages to punish the defendant and to act as a deterrence to others, so can award high sums in extreme cases.

  Rookes v Barnard [1964] AC 1129

  A court may only award exemplary damages if:
  statute expressly authorises them,
  there is oppressive, arbitrary or unconstitutional action by government officials,
  or where the defendant's conduct was calculated to earn a profit which might exceed the compensation which the court may order to be paid.

  Cassell & Co v Broome [1972] AC 1027

  Facts:

  The defendant published a libellous book about a Navy officer in World War II.

  Issue:

  Could exemplary damages be awarded?

  Held:

  The court awarded £25 000 exemplary damages because the defendant acted on a cynical calculation that the profit to be made from committing the tort would exceed the compensation payable.

  Kuddus v Chief Constable of Leicestershire Constabulary [2001] 3 All ER 193

  The House of Lords reaffirmed the categories for exemplary damages set out in Rookes v Barnard [1964]. The court highlighted that exemplary damages should be awarded, if any of the categories are satisfied, irrespective of the cause of action.

  Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453

  Facts:

  The claimant was unlawfully detained by the defendant.

  Issue:

  Could exemplary damages be awarded?

  Held:

  Thomas LJ: .. There are a number of factors that show that the unlawful imprisonment of [the claimant] in 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 to compensate the claimant for additional suffering incurred because of the defendant's ill-motivated actions.

  Thompson v Metropolitan Police Commissioner [1997] 2 All ER 762

  Facts:

  The plaintiff was wrongfully arrested and unlawfully detained by the defendant. There was additional evidence that the defendant had deliberately humiliated and insulted the plaintiff during this time.

  Issue:

  How much should be awarded in aggravated damages?

  Held:

  Lord Woolf: .. In the future the judge will include in his summing up a bracket for basic damages, an indication that 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....