1. Remedies

2. Lesson Objectives By the end of the session you should be able to:
Identify the main remedies available in tort.
Explain what is meant by mitigation of loss.
Explain the difference between general and special damages.
Explain nominal damages and contemptuous damages.
Explain the difference between aggravated and exemplary damages.
Explain the two main forms of injunctions.
Explain quia timet injunctions, interim injunctions and final injunctions.
Explain how the maxims of equity might affect the granting of an injunction.

3. The Main Remedies The main remedies for tort are:
Damages: the aim is to put the injured party in the same position as he/she would have been in if the tort had not occurred. Damages are the main remedy for tort.
Injunctions: this is a court order instructing a party to do or refrain from doing something. In tort, injunctions are mostly used in cases of nuisance.

4. Mitigation of Loss
A claimant who has suffered a loss as a result of a tort is entitled to damages for any losses. However, the claimant is expected to take reasonable steps to mitigate any losses.

5. Mitigation of Loss: The Flying Fish
I have a ship called the Flying Fish. Another vessel negligently collides with my ship causing damage. I refuse any offer of aid after the collision. My ship sinks.
Question:
Can I make a claim against the other vessel for the sinking of my ship?

6. Mitigation of Loss: The Flying Fish
I have a ship called the Flying Fish. Another vessel negligently collides with my ship causing damage. I refuse any offer of aid after the collision. My ship sinks. Question: Can I make a claim against the other vessel for the sinking of my ship? Answer: If my refusal of aid is regarded as negligent, I can only recover the damage caused by the collision and not the sinking of my ship.

7. Types of Damages Payable
The following are the main categories of damages payable for tort:
General Damages
Special Damages
Nominal Damages
Contemptuous Damages
Aggravated Damages
Exemplary Damages

8. General and Special Damages
General damages: these are damages which are not capable of being calculated before the trial and the court has to calculate them. For instance, loss of future earnings and for pain and suffering.
Special Damages: these are damages which are capable of being calculated at the time of the trial. For instance, loss of earnings and medical expenses before trial.

9. Nominal Damages
These damages are awarded when there has been little or no harm caused and the court wishes to award a very small amount.
They are only used for torts which are actionable per se.
A tort ‘actionable per se’ is a tort which does not require proof of damage to be actionable. This means that damages are payable just because the tort has happened. Defamation and trespass are two torts which are actionable per se.

10. Contemptuous Damages
These damages are awarded when the level of harm has been low and the court believes that an action should not have been taken even though the defendant has been liable under tort. These damages can be as low as one penny! Unlike nominal damages, they can be awarded for any tort.

11. Aggravated Damages and Exemplary Damages
Aggravated Damages: these are damages awarded over and above that needed to put the claimant back in the position that he/she would have been had the tort not occurred. They represent an additional sum of money because the initial harm was made worse because of some aggravating factor. They are mostly awarded in cases of defamation and trespass to the person.
Exemplary Damages: these are sometimes called ‘punitive damages’. These are damages whose purpose is to punish the defendant for committing the tort. They are only awarded in certain circumstances.

12. Rookes v Barnard [1964]
This case is important because when it was heard on appeal in the House of Lords, Lord Devlin explained the purpose of exemplary damages and the circumstances when they could be awarded. Lord Devlin: “Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter.”

13. Rookes v Barnard [1964]
Lord Devlin identified three circumstances when exemplary damages could be imposed:
Oppressive, arbitrary or unconstitutional action by the servants of the government.
Where the defendant's conduct was calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant.
Where a statute authorises the paying of exemplary damages.

14. Exemplary Damages: Discussion
Some argue that exemplary damages should not be allowed because the purpose of civil law is not to punish. Punishment, it is argued, should be the purpose of the criminal law. Do you think exemplary damages should be payable in cases of tort? [Hint: Do you think the law of tort should aim to punish?]

15. Injunctions
An injunction is a court order that requires the defendant to behave in a certain way.
Injunctions can take two forms:
Prohibitory injunctions: these instruct the defendant to not behave in a certain way, i.e. to stop committing the tort.
Mandatory injunctions: these instruct the defendant to take an action to rectify the situation created by the tort. They are rarely granted in tort actions.

16. Using injunctions for Torts
Injunctions tend not to be used for torts such as negligence or occupiers liability.
Injunctions are mostly used for the torts of nuisance, trespass to land and defamation.

17. Quia Timet Injunction
This is an injunction which is obtained prior to the commission of a tort.
Quia timet is Latin for ‘because he fears’.
The circumstances when a quia timet may be granted was stated in Fletcher v Bealey [1884]: the danger must be imminent, the potential damage must be substantial and the only way the claimant can protect himself is through a quia timet.

18. Fletcher v Bealey [1884]
Pearson J:“There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shewn that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the Plaintiff to protect himself against it if relief is denied to him in a quia timet”.
Quoted in London Borough of Islington v Elliott and Morris [2012] para. 30

19. Quia Timet Injunctions
Why do you think that the courts can be reluctant to grant a quia timet injunction?

20. Interim Injunction
This is also known as an interlocutory injunction and may be granted once an action has begun but before the main court hearing. The injunction will instruct the defendant to not behave in a certain way.
The conditions for granting an interim injunction was stated in American Cyanamid v Ethicon [1975]. They are:
There must be a serious issue to be tried
The ‘balance of convenience’ must favour the granting of the injunction – if there is no imbalance then no injunction should be issued so as to preserve the status quo.

21. Interim Injunctions: The Balance of Convenience
An interim injunction is only granted if the claimant undertakes to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the claimant had not been entitled to restrain the defendant from doing what he was threatening to do. However, these damages may not be adequate compensation if the defendant is made to stop doing something. The courts must try to balance the need for the injunction against the effects on the defendant.
Lord Diplock: The Court must weigh one need against another and determine where " the balance of " convenience " lies.

22. Final Injunction
A claimant will not be granted an injunction unless he/she can establish that damages would not be an adequate remedy.

23. Injunctions as an Equitable Remedy
The following are three of the maxims of equity.
One who seeks equity must do equity
Equity does nothing in vain
Delay defeats equity
What do you think each maxim means?
How would they apply when a court is considering granting an injunction?

24. Injunctions as an Equitable Remedy
Injunctions are an equitable remedy and as such are at the discretion of the court and not a right.
The maxims of equity determine when they might not be awarded.
One who seeks equity must do equity: injunctions will not be granted if the claimant has acted unfairly (e.g. where the claimant has encouraged the defendant to commit the tort).
Equity does nothing in vain: the court will not award an injunction if the defendant will be unable to comply with its terms.
Delay defeats equity: the court is unlikely to award an injunction where there has been an unreasonable delay in asking for an injunction.