Remedies — common mistakes

In a problem question involving personal injury, always structure your answer by separating calculations into 'Special Damages' and 'General Damages'. For special damages, advise the claimant to keep meticulous records and receipts for all expenses incurred.

Generally, no. The primary purpose of damages is compensation (restitutio in integrum). The main exception is exemplary (or punitive) damages, which are very rarely awarded in specific circumstances (e.g., oppressive government action) to punish the defendant, as outlined in Rookes v Barnard. For most torts, like negligence, the focus is solely on compensating the claimant's loss.

The court must adjust the total sum to be fair. Firstly, it accounts for the 'vicissitudes of life'; the claimant might have faced redundancy or illness for reasons unrelated to the tort. Secondly, it accounts for 'accelerated receipt'; receiving a lifetime of earnings as a single lump sum allows the claimant to invest it. Therefore, the total award is discounted using an adjusted 'multiplier' from the Ogden Tables to reflect these factors.

This relates to the duty to mitigate loss. If a claimant unreasonably refuses medical treatment that would likely improve their condition and reduce their financial loss, the court may reduce their damages award. The court will not award damages for losses that could have been reasonably avoided. The key word is 'reasonable' – a claimant would not be expected to undergo highly risky or experimental surgery.

Yes. The Damages Act 1996 (as amended by the Courts Act 2003) gives courts the power to impose periodical payments for future pecuniary loss, such as care costs or lost earnings, even if one of the parties does not consent. This is done to ensure the claimant has a secure, lifelong income stream to meet their needs.