Remedies Lecture

Once a case has been made by a claimant and the defendant’s case defeated, the court will decide on an appropriate remedy to apply to the problem at hand. Remedies come in two primary forms: damages and injunctions. The claimant will certainly have an idea of the outcome that they’d like, but a win does not guarantee that outcome, which is ultimately determined by the court. Thus, as can be seen in many privacy and defamation cases, a claimant will often come to court to apply for an injunction but then leave with damages (whilst their private information is published enthusiastically by the press over the next few days).

Damages

Damages are quite simply the award of a monetary sum to the claimant, which must then be paid by the defendant (or as is often the case, the defendant’s insurance company). The general guiding principle is that of full compensation: the idea that the amount of damages awarded should return the claimant to the position they would have been in had the tort not occurred. If a car is written off, damages normally reflect its market value immediately before the accident, less any salvage value: so a claimant won’t be awarded the cost of a new car if their car had 200,000 miles on the odometer. Where repair is reasonable, the reasonable cost of repair is usually the measure of the reduction in value. Other situations are less clear and cannot be assigned an easily calculable label - actions for trespass to person, for example, are about the damage done to a right, and are thus difficult to quantify.

An award of damages is made up of a number of different smaller awards which take into account different elements of the case, usually added together to reach a final lump sum. Prudent judges will provide this breakdown at trial (see the cases below for an example of this). In personal injury cases the court may instead award periodical payments for future financial loss. Where there is a chance of a specified serious disease or deterioration, provisional damages can allow the claimant to return for further damages if it occurs.

The Mitigation Principle

Before continuing, it is worth noting the mitigation principle: a claimant cannot recover losses which the defendant shows the claimant could reasonably have avoided. This is important because the cost of many of the heads of damage below could be artificially inflated by an avaricious or malicious claimant. If this were the case a claimant could opt for a solid gold prosthesis over a carbon-fibre model, to the detriment of the defendant.

Special Damages

The first category is special damages. That is, financial losses which can be specified at the time of the trial, such as lost wages or costs already incurred.

The expenses caused by a broken arm or the acquirement of a disability can fall under this heading. Pain, suffering and loss of amenity fall under general damages. The Judicial College Guidelines assist in valuing those injuries. A statutory tariff applies to qualifying road traffic whiplash injuries lasting no more than two years and sustained on or after 31 May 2021. Revised amounts apply to injuries sustained on or after 31 May 2025. The court may increase the tariff award by up to 20% in exceptional circumstances. Where there are also non-tariff injuries, the awards are assessed separately and adjusted for overlap, without reducing the total below the common law award for the non-tariff injuries alone (Hassam v Rabot [2024] UKSC 11). The Ogden tables, now in their 8th edition (published in 2020), help judges and lawyers calculate future financial losses. As per the mitigation principle, a claimant will be expected to take reasonable care not to make their injury worse than it already is. An unreasonable failure can reduce damages for the additional harm it causes (see causation for more details).

Loss of earnings before the trial comes under special damages - so a claimant might have been off work due to their injury. The net earnings lost can be given a specific value, and thus comes under the heading of special damage.

Pre-trial medical expenses are included under special damages, since they can be quantified. It will be up to the claimant to demonstrate that their medical expenses have been reasonable. This principle can be seen in Donnelly v Joyce.

It should be noted that the basis of recovery for gratuitous care was reconsidered by the House of Lords in Hunt v Severs [1994] 2 AC 350, which held that damages for gratuitous nursing care are recoverable to meet the claimant’s need for care, with the claimant holding the award on trust for the carer. This modified the reasoning in Donnelly, though the practical outcome — that the cost of gratuitous care is recoverable — remains the same where the carer is not the tortfeasor from whom the damages are sought.

Thus since the ‘reasonable cost’ was that of a nurse, and there was no evidence that the mother’s lost wages exceeded this amount, the cost of the lost wages was recoverable.

This also demonstrates the compensation principle - whilst the claimant was entitled to use a nurse and recover the reasonable cost, he did not, instead opting (‘opting’ used loosely, he was six years old) for his mother’s care. The fact that he had paid her nothing did not prevent recovery of the reasonable value of the care she provided.

Claimants are not expected to choose the cheapest treatment, as long as they can demonstrate that their choice of treatment is reasonable. Thus in Rialas v Mitchell (1984) 128 SJ 704 the claimant received injuries which could have been treated at a lesser cost if they had been institutionalised, instead opting to receive treatment at home. This was regarded as reasonable, since the claimant was simply seeking to live at home - something which would have happened had he not received his injuries. What is reasonable for a particular claimant will depend on their circumstances, and this can lead to some novel decision making. Thus in Winkworth v Hubbard [1960] 1 Lloyd’s Rep 150 a Canadian claimant was injured in France, and opted for treatment in New York. This was held to be reasonable in the claimant’s circumstances, even though the treatment cost more than it would have in England.

Notably, whilst the most obvious thing a claimant could do to mitigate costs would be to opt for NHS treatment, the courts are instructed by statute to ignore this option when considering whether the claimant’s behaviour has been reasonable, as per s.2(4) of the Law Reform (Personal Injuries) Act 1948. A claimant who has received free NHS care cannot also recover the cost of private treatment for that same care. Future private treatment is recoverable if it is reasonable and the claimant is likely to use it.

House help will often be necessary for those who have suffered a debilitating injury - after all, a claimant’s position before their injury will usually be one in which they can keep their house in a tidy manner and do various chores. Thus a claimant can table the costs of help to accomplish these tasks under special damages. Thus in Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120 a housewife was injured by the defendant and was awarded, in part, damages to reflect the loss of her ability to do housework, which could be valued by reference to the cost of domestic help even if none was hired. It should be noted that it is common for claimants to soldier on and perform their own domestic tasks - if this is the case, a claimant will be able to recover general damages which take into account loss of amenity and if performing such tasks causes pain, damages which account for pain and suffering, without compensating twice for the same loss.

The law has developed a particular way to deal with situations in which outside assistance (medical or domestic) is provided by family or friends. This is in order to take account of the fact that often such help won’t be easily quantifiable (as it was in Donnelly, where the mother’s lost wages provided the measure used.) This method of quantification can be seen in Evans v Pontypridd Roofing Ltd.

Whilst the court provided this method of quantification, it also noted that neither an hourly calculation nor a fixed percentage deduction was required. Thus it can be held that whilst courts will certainly make an effort to follow previous cases, they still hold authority to decide the appropriate award in the case before them (much like contributory negligence calculations).

Personal expenses might rise as a result of injury. These can thus be claimed for. Examples include additional heating for a claimant who becomes more susceptible to the cold, or a claimant who requires special footwear, as in Donnelly (above), or must wash their bedding more often due to increasing hygiene needs, as in Leon Seng Tan v Bunnage [1986] (unreported). It is important to note that the defendant is only liable to the extent that the cost is in addition to the claimant’s usual spending. The principle is compensation for the claimant’s net loss (Hodgson v Trapp [1989] AC 807, 826). Thus if a claimant would have spent £100 on heating each month, and as a result of their injury now spends £110, then the defendant is only liable for £10 each month.

Finally, the claimant might have suffered easily quantifiable property damage - a car smashed to pieces in an accident, or a coat destroyed in a fire. These damages are as much subject to the mitigation principle as any other - thus the courts will take a dim view of a claimant who suffers a small dent in a car crash but then decides that the car is totalled and sells it off to a scrapyard.

It is worth noting that claimants will often look to expert evidence in order to argue why their behaviour or needs are reasonable. Thus a doctor might be consulted as to reasonable treatment needs, or an insurance company as to the value of a destroyed car. Similarly, a defendant might bring their own expert to argue that the claimant has acted unreasonably, in order to reduce the award of damages.

General Damages

General damages include pain, suffering and loss of amenity, whether before or after trial, and the court’s assessment of future financial loss. The court will ask the claimant to demonstrate what their likely future costs and losses are likely to be. Many of these damages will blend into the special damages discussed above; for example, a claimant who has already incurred lost earnings or needs nursing help may well need this help after the trial. Some injuries are lifelong, and thus will have a lifelong cost. These are far more difficult to quantify accurately. Take, for example, one of the simpler extra costs - a claimant needs an adapted car to help cope with an acquired disability. This car will need to be replaced every so often - but thanks to inflation and the resale market it is difficult to say how much the replacement will cost in 20 years’ time. The car might require extra fuel above a normal car, which means that damages will need to reflect that - but there’s no telling what the oil market will do. Thus the proper calculation of general damages is not exactly easy. It should be noted that calculations for lifelong losses will involve hypothetical assessments of an individual’s remaining lifespan, which in itself is precarious - there is every possibility that a claimant might be awarded a lump sum reflecting an 80 year lifespan, and then get hit by a bus the very next day.

Future loss of earnings forms a substantive part of general damages. Sometimes this will be easy to quantify - so if a claimant will be off work for a month, they will be able to recover their net earnings (e.g. minus tax and national insurance). However, some injuries might affect a claimant’s lifelong ability to work. A claimant who cannot work at all will be able to recover their earnings for the length of their future career, up until a likely retirement date. Sometimes a claimant will be prevented from carrying on with their current career, but will be able to undertake some other sort of work. In these situations the mitigation principle is important - a claimant will be expected to take reasonable steps to seek suitable work. Thus the relevant loss of earnings total will be what the claimant would have earned, minus what they will be able to earn regardless of injury. The defendant must show what loss the claimant could reasonably have avoided. Evidence of unsuccessful job applications may show that the claimant could not obtain suitable work. Where the injury shortens life expectancy, even a child may recover earnings lost during the years they would otherwise have lived, after deducting the living expenses they would have incurred for those years (CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5).

Promotions create a significant difficulty: a claimant who can only work 20 hours a week instead of 40 might have their promotion opportunities curtailed, and since promotions can beget promotions, damages will have to take into account not only how much money an individual might earn over their career, but also how quickly their earnings might be ramped up as a result of promotion. As long as the claimant can show to the court that they were on a career ladder of sorts, damages can reflect different earnings at successive stages of their likely career, as in Brittain v Garner [1989] (The Times, 18 Feb). A real and substantial chance of promotion must be valued according to its likelihood.

Future medical expenses also come under this category, since they will often be speculative (nobody knows what treatment might become available in 20 years’ time, after all). The mitigation principle applies here as elsewhere, so the claimant will have to argue that they are intending to pay for a reasonable course of medicine. Thus in Lim Poh Choo v Camden and Islington AHA [1980] AC 174 the claimant, who was injured in a medical malpractice incident, was being cared for by her mother in Malaysia. It emerged that her mother was becoming increasingly infirm, and so the claimant was able to claim for the private British healthcare that she would foreseeably require. Again, the ‘no-NHS’ principle applies here, but the claimant will still need to argue that they will be using private medical facilities, rather than the NHS. In Woodrup v Nicol [1993] PIQR Q104, the court found that the claimant would fund half of his future medical expenses privately and would rely on the NHS for the other half. Only the private half was recoverable.

It is important to note that just because an activity might help with a negligently acquired injury, this does not mean that it can necessarily be wrapped into damages - it must be demonstrated that the activity is an additional cost. Thus if a claimant regularly went hillwalking before an injury, and then intends to go hillwalking after a leg injury to rehabilitate it, they will not be able to claim for costs they would have incurred anyway (this principle can be found in Cassel v Riverside Health Authority [1992] PIQR Q168). Similarly, rehabilitation activity must be undertaken in a reasonable manner. Thus in Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB), it was held that the claimant’s need for hydrotherapy could not be met by travelling to a local pool, and that the cost of a small pool was reasonable. The existence of a cheaper option did not itself make the claimant’s choice unreasonable.

Pain and suffering are a general damage, since they cannot be quantified in an exact manner. Their exact calculation will depend on the claimant and the manner of their injury. It should be noted that pain and suffering is subjective. An example of this thinking can be seen in H West & Son Ltd v Shephard [1964] AC 326, 340–341 (Lord Reid, at 1 of his speech): “In the ordinary case of a man losing a leg or sustaining a permanent internal injury, he is entitled to recover in respect of his pain and suffering: if he is fortunate in suffering little pain he must get a smaller award.” It should be noted, however, that the courts will not consider economic or social position to have a bearing on this category, as per Fletcher v Autocar and Transporters [1968] 2 QB 322. This category also includes psychiatric harm, as per James v Woodall Duckham Construction Co Ltd [1969] 1 WLR 903, but in keeping with tort law’s approach to psychiatric injury, mere sorrow or grief is not a psychiatric injury. Distress that increases the suffering from a physical injury can count in assessing damages, as in Kralj v McGrath [1986] 1 All ER 54.

Loss of amenity is also a type of general damage, referring to the physical impairments (and loss of ability to undertake activities) that can occur as the result of an acquired injury. This definition can be found in H West & Son Ltd v Shephard [1964] AC 326:

“There are two views about the true basis for this kind of compensation. One is that the man is simply being compensated for the loss of his leg or the impairment of his digestion. The other is that his real loss is not so much his physical injury as the loss of those opportunities to lead a full and normal life which are now denied to him by his physical condition— for the multitude of deprivations and even petty annoyances which he must tolerate.”
- Lord Reid, at 1 of his speech ([1964] AC 326, 340–341).

Lord Reid favoured the second view, but was in the minority. The majority held that the deprivation itself is compensable even where the claimant is unconscious and cannot appreciate what they have lost. This is not a matter of including every possible lost opportunity, otherwise loss of amenity would be nearly infinite, but instead is one of asking which activities that the claimant was likely to have engaged in are now unavailable to them. This means that an extremely active go-getter will usually have a greater claim under this head of damages than a sedentary shut-in. Examples of such losses include loss of ability to go sea fishing in winter, as per Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9, disfigurement in Oakley v Walker (1977) 121 Sol Jo 619, or loss of senses in Cook v JL Kier and Co Ltd [1970] 1 WLR 774.

Nominal Damages

Nominal damages are a small financial award (sometimes as low as £1) awarded when a claimant’s rights have been infringed, but no substantial loss is proved and the tort is actionable without proof of damage. Negligence requires actual damage. They are often awarded alongside an injunction (which solves the problem the claimant is attempting to deal with). Consider: a defendant fly-tipping a fridge in your garden might be annoying, but what you really want is the fridge moved; there is little quantifiable damage. Where the defendant’s conduct causes additional injury to feelings, an award for that injury may be increased, as in the discrimination case of Alexander v Home Office [1988] 1 WLR 968.

Contemptuous Damages

Where the courts are of the belief that a claim technically has legal merit, but little moral merit, they may award contemptuous damages to the claimant. This is often as small an amount as possible - as low as 1p. Consider a case in which a defendant has fly-tipped an empty packet of crisps into your garden. Lengthy litigation might find you in the legal right, but this would also be a sure way to annoy a judge! Contemptuous damages can be seen in Reynolds v Times Newspapers [1999] 3 WLR 1010 - at the first trial, the jury awarded nothing and the judge substituted 1p. The Court of Appeal ordered a retrial, and the House of Lords dismissed the newspaper’s appeal on qualified privilege. It should be noted that the issue of costs can mean the defendants still have to pay more than the single penny, but at the same time a court which believes a claim to be frivolous is likely to be equally harsh on the claimant when making their costs decision.

Aggravated Damages

Aggravated damages are compensatory. They reflect additional injury to feelings, usually humiliation or distress caused by the manner of the defendant’s wrongdoing. This can be seen in Appleton v Garrett.

Thus aggravated damages allow the court to take account of abstract injury to the claimant’s feelings where the cause of action permits recovery and the defendant’s conduct has aggravated that injury.

Exemplary Damages

Exemplary damages punish the defendant in exceptional cases where compensatory damages, including aggravated damages, are insufficient. This can be seen in Thompson v Metropolitan Police Commissioner.

It should be noted that the availability of exemplary damages in tort was confirmed and clarified by the House of Lords in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, which held that exemplary damages are not restricted to the specific causes of action in which they had previously been awarded. The categories in Rookes v Barnard [1964] AC 1129 still apply: oppressive, arbitrary or unconstitutional conduct by servants of the government, wrongdoing calculated to yield a profit exceeding the compensation payable, or express statutory authorisation.

The Discount Rate

When calculating lump sum personal injury awards for future financial losses, the courts apply a discount rate to reflect the fact that the claimant will receive a large sum immediately which can be invested, rather than receiving smaller periodic payments over time. The rate is set by the Lord Chancellor under s.A1 of the Damages Act 1996 (as amended by the Civil Liability Act 2018). In England and Wales the rate rose from minus 0.25%, set in 2019, to plus 0.5% on 11 January 2025. The Civil Liability Act 2018 requires a new review to start within five years of the conclusion of the last review. The discount rate has a significant practical impact: a lower rate increases the size of lump sum awards, since it assumes less investment return, whilst a higher rate reduces them.

Payment

A final lump sum is normally assessed once and for all. This would lead to issues where claimants’ medical prognoses were highly variable - so a claimant might have a negligently acquired injury which might get better or worse. In acknowledgement of this issue, the Damages Act 1996 (as amended) now requires the court to consider a periodical payments order for future financial loss in personal injury cases. The court can make the order without the parties’ consent if satisfied that continuity of payment is reasonably secure. Under the Damages (Variation of Periodical Payments) Order 2005 the court can provide for variation if a specified serious disease or deterioration, or significant improvement, occurs.

The discount rate used for a lump sum takes account of the return available after allowing for inflation, tax and investment costs. Periodical payments are normally linked to the retail prices index, although the court may order a different index or disapply indexation.

Injunctions

An injunction is an order by a court that the defendant must behave in a certain manner. They come in two main forms - prohibitory, in which a defendant is prohibited from doing something, and mandatory, in which the defendant must do something. Either form may be final or interim. An injunction granted in anticipation of a threatened wrong is called a quia timet injunction.

Injunctions are a matter of court discretion. Injunctions are an equitable remedy. Under s.37 of the Senior Courts Act 1981 the High Court may grant an injunction where it is just and convenient. Under s.50 it may award damages in addition to or instead of an injunction. Their use tends to be limited, since they involve essentially overriding the will of an individual or organisation - something the court attempts to avoid, where possible.

Prohibitory Injunctions

Prohibitory injunctions are useful to prevent the interference with a claimant’s rights: so an order that a newspaper cannot publish confidential information, or one that states that a building site cannot operate at night, for the benefit of local residents. A continuing or threatened interference with property rights will normally justify an injunction, although the court may award damages instead (Coventry v Lawrence [2014] UKSC 13). Thus in Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411, the defendants’ crane regularly trespassed onto the claimant’s land. There was little actual harm, and so an award of damages would be so low that the defendant could pay them and then carry on with their trespass behaviour. The judge granted an injunction but suspended its operation to give the defendants time to finish the work.

The courts won’t always grant an injunction if the interference is trivial. The parties’ conduct can affect that decision. This can be seen in Armstrong v Sheppard and Short Ltd.

Mandatory Injunctions

Mandatory injunctions tend to be rarer, firstly because cases tend to arise more often from people doing something they shouldn’t (so call for prohibitory injunctions), and secondly because mandatory injunctions involve a greater level of interference with the defendant. This can be seen in Redland Bricks Ltd v Morris.

Firstly, there must be a very strong probability of grave damage in the future if the court does not intervene.

Secondly, damages must be an insufficient alternative. There are situations in which money cannot solve a problem, or in which the level of damages would be disproportionately high when compared to an injunction.

Thirdly, the court must consider the cost to the defendant. Where the defendant has acted reasonably, the cost must be proportionate to the benefit of the work. A defendant who has acted wantonly or in disregard of the claimant’s rights may be ordered to put matters right even at disproportionate cost.

Fourthly, the injunction must be capable of describing exactly what the defendant should do. Thus injunctions cannot have vague ‘goals’ for the defendant to accomplish; they must specify the expected behaviour (else enforcement becomes complicated and potentially unjust).

Further Injunction Subtypes

The distinction between final and interim injunctions concerns the stage of the proceedings. The term quia timet concerns the threat of future harm.

Quia timet (‘because he fears’) injunctions are used when the claimant fears a tortious action will occur, but it has not yet taken place. They are often seen in situations in which the tortious action will do irreparable damage if it occurs, such as defamation and privacy cases (once the information is out there, the genie cannot be put back into the bottle.) The claimant must establish a sufficiently real and imminent risk to justify an order. In Redland Bricks the risk was further subsidence, even without any further action by the defendants.

Final injunctions are granted on final determination of the claim. They may prevent a threatened tort or its repetition. This might be an order to stop holding noisy warehouse parties, or an order to stop a series of threatening phone calls.

Interim (or interlocutory) injunctions are granted before the final determination of a claim. They are used primarily as a means of stopping a defendant from acting in a certain way whilst the matter is resolved by the courts, especially where the behaviour would be highly detrimental if it were allowed to go ahead (see privacy, defamation). By definition, they are temporary. Their use is particularly restrained, since they are essentially a remedy which is applied before a case has been properly heard. The criteria for an interim injunction are found in American Cyanamid v Ethicon.

Equitable Rules

Since injunctions are an equitable remedy, they are affected by the principles of equity law. Whilst such a wide topic cannot be covered here, there are three rules it is useful to know. Firstly, equity does not act in vain. Thus injunctions will only be provided if they are practical, and can be implemented effectively. Secondly, equity looks poorly upon delay. So if it is held that a claimant has delayed in bringing their claim, the court are less likely to grant an injunction. Thirdly, equity looks for claimants with clean hands. Misconduct connected with the relief sought may lead the court to refuse it. This can be seen in Armstrong, where the claimant misled the defendants and attempted to mislead the court.

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