Revise Remedies for Cambridge 9084 (4.4.2)

The primary remedy in tort is an award of damages, with the fundamental aim being compensation, not punishment. This is encapsulated in the Latin principle of restitutio in integrum, meaning to restore the claimant to the position they would have been in had the tort not been committed. For property damage, this can often be achieved with precision. However, for personal injury, money is an imperfect substitute for a lost limb or chronic pain. The courts, as stated in Livingstone v Rawyards Coal Co, strive to provide a sum that recognises the claimant's loss and provides for their future needs.

To calculate the final lump sum, compensatory damages are divided into two categories: special and general.

Special damages are pecuniary (financial) losses that can be precisely calculated from the date of the tort up to the date of the trial. These include costs already incurred, such as medical expenses, travel costs for treatment, and loss of earnings up to the trial date. Claimants must specifically plead and prove these losses with evidence like receipts and wage slips.

General damages are losses that are not capable of precise mathematical calculation at the trial date. They cover future pecuniary losses (like future loss of earnings and future medical care) and all non-pecuniary losses, such as:

• Pain and Suffering: Both past and future physical and mental distress.
• Loss of Amenity: The loss of enjoyment of life, such as being unable to pursue a hobby or play with one's children.

Assessing general damages for future pecuniary loss involves the 'multiplier/multiplicand' method. The multiplicand is the claimant's net annual loss (e.g., earnings or care costs). The multiplier represents the period of future loss. It is not simply the number of years until retirement; it is an adjusted figure derived from actuarial data (the Ogden Tables) to account for the 'vicissitudes of life' (e.g., potential unemployment) and, crucially, for accelerated receipt. A discount rate (set by the Lord Chancellor) is applied because receiving a lump sum upfront allows the claimant to invest it.

Traditionally, damages are paid as a lump sum. However, this carries risks, such as the claimant mismanaging the funds or inflation eroding its value. The Damages Act 1996 allows courts to award periodical payments (a structured settlement) for future care costs and loss of earnings. These are annual payments, often indexed to inflation, providing greater long-term security for claimants with serious, long-term needs.

A claimant is under a duty to mitigate their loss. This means they must take reasonable steps to keep their losses to a minimum. For example, a claimant who loses their job must make reasonable efforts to find alternative work. A failure to do so may result in a reduction of damages. The burden is on the defendant to prove that the claimant failed to mitigate.

While compensation is the main goal, other types of damages exist:

• Nominal Damages: A small, token sum awarded where a tort is actionable per se (like trespass) but the claimant has suffered no actual damage.
• Aggravated Damages: Compensatory damages that are increased to reflect injury to the claimant's feelings caused by the manner of the defendant's wrongdoing.
• Exemplary (or Punitive) Damages: A rare, non-compensatory award intended to punish the defendant for outrageous conduct. Their availability is strictly limited by the categories in Rookes v Barnard.

Where damages are not an adequate remedy, a court may grant an injunction. This is an equitable, discretionary remedy. Injunctions are court orders that either compel a party to perform an act (mandatory injunction) or, more commonly, restrain them from committing or continuing an act (prohibitory injunction). They are particularly relevant for ongoing torts like nuisance, trespass to land, or the publication of defamatory statements. A court will consider factors such as the conduct of the claimant and whether an injunction would cause undue hardship to the defendant. Interim injunctions can be granted pending a full trial, based on the principles from American Cyanamid v Ethicon, to preserve the status quo.