Claimants who successfully negotiate all of the various hurdles in suing on tort law grounds such as negligence or nuisance will then be entitled to seek remedies at the end of the case. The main remedies that are available to claimants in tort law are damages and injunctions.
This article explores the principles behind tort law damages and introduces the notion of seeking injunctions against others.
How Are Damages Calculated?
Where a contract is breached the ‘innocent’ party will be entitled to be put in the position they would have been in had the contract been carried out. As a result, damages in contract law seek to compensate the claimant for disappointed expectations.
In tort law, the award of damages looks to the past rather than the future. Claimants for negligence, for example, will be put in the position they would have been in had the negligent act not occurred. The courts therefore compensate claimants for things they did not expect to happen.
A key principle of both contractual and tortious damages, however, is that the defendant’s acts must have caused the claimant’s losses. In particular, the losses suffered by a claimant must have been reasonably foreseeable to the defendant. This means that a claimant cannot sue for losses that had no conceivable link to the negligent act, e.g. loss of employment following a simple road traffic accident causing whiplash.
In tort cases damages are typically assessed at the date of the act in question. That said, there may be circumstances, usually when the claimant’s condition deteriorates between the act and the trial, when the courts take a different view and assess damages after liability has been established.
What Factors Will The Court Take Into Account?
There are several principles the court will bear in mind when deciding on the measure of damages in tort cases.
Firstly, if a claimant has suffered property damage, the courts must choose whether or not to compensate the claimant for the cost of repairing the property or the diminution in value before and after the incident. In cases where the property is used, e.g. machinery, the courts will usually compensate for the cost of repair/replacement, whereas in cases where the property is held as an investment, e.g. with art work or classic cars, the courts will tend to award the difference in value.
Secondly, the courts must consider whether any reduction should be made for contributory negligence. This applies where the claimant has contributed to his losses through his own negligence. For example, if a person makes the choice to get into a car with a drunk driver, who then crashes the car and causes personal injury to the passenger, the passenger will be able to sue the driver but his damages may be reduced on account of his clearly negligent decision to get into the car.
Thirdly, as in contract law, claimants are under a duty to mitigate their losses. It is not sufficient for a claimant to artificially suffer more damage in order to claim an increased amount in court. Therefore, they must do what they can to improve their position, e.g. in personal injury cases by seeking prompt medical treatment.
How Are Damages Awarded For Personal Injuries?
There are huge, voluminous ring binders devoted to the single subject of damages in personal injury cases. It is a highly complex and detailed area of the law. In this part of the article, the basic principles of damages (known as ‘quantum’) will be considered. Those seeking more information should consult specialist textbooks.
Essentially there are two types of damages in personal injury cases:
- Special damages – these cover actual monetary losses the claimant has suffered from the accident – medical bills, travel expenses to and from hospital, loss of earnings, nursing costs etc.
- General damages – this category is intended to compensate for the intangible losses of a claimant’s ‘pain, suffering and loss of amenity’. There are precedents for past awards (adjusted for inflation) and formulas that must be followed in this area. General damages also compensate for any disadvantage on the labour market as a consequence of the injury.
It should be noted that claimants are free to seek medical treatment at private institutions rather than the National Health Service; the defendant is required to pay the costs in any event.
Sometimes, however, damages will simply be an inadequate remedy. If a claimant is desperately requiring something to stop happening, a financial award will not be enough to achieve justice. Where this is the situation, it is open to claimants to seek an injunction.
Injunctions are essentially legal bans on taking a course of action. A prohibitory injunction prevents the defendant from doing something they were doing before the injunction was imposed. Another type of injunctions is mandatory injunctions, where the defendant is ordered by the court to do something they were not doing before the injunction was taken out.