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Remedies - Coggle Diagram
Remedies
Common Law Remedies
Non-compensatory damages:
types of damages are connected with other aims of tort, specifically deterrence and retribution
- award of large amounts of compensation attempts to ensure that accidents are avoided by potential defendants
- retribution is more appropriate to criminal law this aim allows claimant to feel vindicated as the law has been on their sid and justice has been achieved - payment of damages can be seen as an acknowledgement of the wrong that was committed or even as analogy
Contemptuous:
damages that are awarded to the claimant where legal rights have been infringed but court disapproves of the claimants conduct and wants to make it clear that the action should never have been brought
these damages are said not amount to more than the value of the least valuable coin in the country where the claim is being brough but they can be higher than this
claimant unlikely to recover the costs of bringing the case. contemptuous damages are not awarded very often but are usually given in defamation casees. defamation is a tort which occurs when a person makes an untrue statement
Nominal Damages:
given to claimant where they has been an infringement of the claimants legal rights but there has been no actual damage caused - court will award small amount of compensation to acknowledge that there has been an infringement of rights
Aggravated damages:
these are damages which are awarded where the claimant has suffered more than would normally be expected in a case - higher level of damages reflects the courts disapproval of defendants behaviour
Exemplary damages:
here the court will award more damages than would normally be appropriate because it is seen as form of punishment for the defendant - means that award of exemplary damages is strictly controlled; for example, if the claimant has not suffered any damage, then exemplary damages cant be awarded
HofL in Rookes v Barnard set down when such damages could be granted - case must fall into categories
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Conduct calculated to make a profit: defendant may consider it worth committing the tort, because the cost of paying damages to claimant is outweighed by any profits made - can happen in relation to tort of defamation where the claimant is suing the defendant for libel or slander because their good reputation has been damaged
oppressivel conduct by government servants;
an award of damages can be made under this head if there has been an oppressive or unconstitutional action by government servants while carrying out their jobs e.g. police officers are supposed to serve society and use powers according to law
Damages for personal injury;
as stated above the aim of the paying compensation, to the claimant is to put the claimant in a position they would have been in if the tort hadnt been committed
this is not always possible where personal injury has occurred especially where the claimant has suffered permanent disabiity
claims for pecuniary and non-pecuniary damages attempt to ensure that the claimant is not left under compensated
damages are usually awarded on a one-to-one basis in the form of a lump sum
if settlement is large because of severity of injuries involved then the claimant may receive payments over period of time to reflect their individual needs
Purposes of damages in tort:
when awarding damages, the courts primary aim is to compensate the claimant that is to put claimant in position they would have been in had tort not occured - however there are some forms of damages which aim to punish the defendant as well as compensate the claimant
when awarding damages the court has to ensure that the claimant is neither over compensated or under compensated
Calculation of damages:
aim of this type of damages is to put claimant in position they would have been in had the tort occurred - compensatory damages do not take into account the degree of fault involved in the defendants actions or inactions so the court does not distinguish between a momentary slip of attention and gross negligence means that courts cant provide justice to claimant without some injustice to defendant
Mitigation:
claimant will be expected to mitigate any loss - means that defendant wont be liable for compensatory damages regarding any loss that could have been prevented by the claimant - balanced against this, teh claimant isnt expected to make vast efforts to avoid a loss that is the defendants faults - Ronan v J Sainsbury
Non-pecuniary damages:
aim of this type of damages is to provide fair compensation - however it might not be possible to accurately estimate amount of compensation that a claimant should be awarded
they can include losses from trial or settlement date such as:
- an amount for pain and suffering - may arise from injury itself or from medical treatment that has been recieved because of the injury - claimant will not be able to claim for any period of unconciousness they are not aware of any pain
- an amount for loss of amenity - can be claimed where claimant is unable to enjoy life as to the same extent as before - cant enjoy sports any longer
- future losses - such as loss of earning and the cost of care for claimant
when calculating claimants annual wage, court will take into account any promotion prospects and the number of years the effects of the accident are likely to continue
as this head of compensation is difficult to calculate, can be allegations of over- and under- compensation - 2 contrasting cases: Cooke and Doyle
loss of amenity can still be claimed even if the claimant is unconscious and not aware of the loss of amentiy
H.west and son v Shepherd - case has been criticised as a person who is unaware of their loss of amenity can still be compensated - in this situ the claimant cant actually use damages paid, compensation goes straight to their estate and seems unfair as relatives of unconscious claimants may end up with more money than relatives of claimant who has been killed immediately
if the claimant is expected to die earlier than they otherwise might have, considered unfair to reduce the amount of damages because the income wouldnt have been needed for so long. approach taken by the courts is to use the claimants predicted life expectancy if the accident hadnt happpened, but reduce by the amount that the claimant would have spent supporting themselves during that time
Pecuniary damages:
these can include the following...
- pre-trial expenses - claimant is able to claim for all expenses actually and reasonably incurred - damage to clothing and medical expenses
- expenses incurred by 3rd party, partner or relative who has given up work to care for claimant - Donnelly v Joyce, claimant was a child and able to claim for this type of loss when his mother had to give up work to look after him after defendants negligence - any damages recovered under this category are essentially compensation for the carer not the claimant - when claimant recieves the damages, they should give money to the carer - cost of future care is recoverable, as long as its necessary or reasonably incurred
- pre-trial loss of earnings, less any taxes
Equitable remedies
Use of injunctions:
court may grant an injunction to deal with continuing or repeatable torts such as nuisance and trespass to land - purpose of such an order is to prohibit the defendant from committing, continuing or repeating a tort
according to s37 of Supereme court act 1981 - the granting of an injunction is discrentionary and can be granted where it is 'just and convenient' - clear from case law that an injunction will not be granted where it would be more appropriate award damages
most injunctions are prohibitory by nature (they prevent certain behaviors from occurring) can also be mandatory, interlocutory or final
Mandatory Injunctions:
if this is granted, court will order the defendant to do something. the guidenlines that the courts follow when considering whether to grant such an inunction are set out in Redland Bricks v Morris
court has to consider the following:
- an injunction should only be granted if damages are not adequate in the circumstances
- where defendant has acted reasonably but wrongly, the fact that the cost of carrying out the injunction is expensive can be used to grant the injunction
- if the defendant has acted reasonably, cost should not be taken into account
- finally, injunction must be specific, and with accurate instructions given to defendant
Prohibitory Injunctions:
these are granted to prevent continuing tortious behaviour - they are usually used in relation to trespass to land and nuisance actions to protect the claimants interests but can be used in trespass to the person cases
aim of such injunctions is to prevent further harm to claimant - they are obtained more easily than mandatory injunctions as hardship being suffered by the defendant is not a ground for refusing an injunction
Damages in Lieu of an injunction:
if granting an injunction would be oppresive to the defendant, the court should excersise its discretion to award damages intstead of an injunction
for example, if the harm to the claimant is minor damages may be more appropriate
Regan v Paul Properties is an example of where the court didnt consider the injunction to have an oppressive effect
Interlocutory injunctions:
these are awarded to the claimant before the case actuall gets to trial, and are designed to prevent potential harm or continued harm - an interlocutory injunction may be either prohibitory/madatory
guidelines for this type are set out in Americcnan Cynamid Co v Ethicon:
- claimant doesnt have to establish a prima facie case - but there must be a serious q that has to be answered
- if compensation is adequate, no interlocutory required
- if adequacy of compensation is questionable, the court has to decide on issue on balance of convenience - court will consider: what does the claimant gain, and what does the defendant loose?
Interlocutory injunctions are often used in defamation cases, to protect the reputation of the claimant, however once a defamatory statement is made, it an be undone
also arguments that such injunctions put limit on freedom of speech