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. It should be noted that the compensation principle (justifiably) only demands like-for-like replacement: so a claimant won’t be awarded the cost of a new car if their car had 200k on the milometer. Instead, their damages will reflect wear and tear. 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, all added together to reach a final lump sum. Prudent judges will provide this breakdown a trial (see the cases below for an example of this).

The Mitigation Principle

Before continuing, it is worth noting the mitigation principle: roughly, a claimant must act where reasonable to mitigate their own losses. 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, damages which can be specified at the time of the trial (so damages for injuries or costs which take place pre-trial).

This includes any injuries which have manifested themselves such as a broken arm or the acquirement of a disability. These are quantified using the Ogden tables - essentially a guide for judges and lawyers to help them calculate the appropriate amount for a given injury. As per the mitigation principle, a claimant will be expected to take reasonable care to not make their injury worse than it already is (and indeed, any excessively careless events in which a claimant makes their injury worse can invalidate the claim, see causation for more details).

Loss of earnings before the trial come under special damages - so a claimant might have been off of work due to their injury. This 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.

Thus since the ‘reasonable cost’ was that of a nurse, and the mother’s lost wages were less than 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 cost, he did not, instead opting (‘opting’ used loosely, he was six years old) for the cheaper option of his mother’s care. Since he was entitled to recover for his losses but not any more than that, the relevant cost was the one he incurred, rather than the one he was entitled to. Thus the maximum recoverable cost is that which is reasonable, or that which the claimant incurred, whichever is less.

Claimants are not necessarily expected to be complete spend-thrifts, as long as they can demonstrate that their choice of treatment is reasonable. Thus in Rialas v Mitchel [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 as 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 Roberts v Roberts [1960] (The Times, 11 March) a Canadian claimant was injured in France, and opted for treatment in New York. Since it was held reasonable for a Canadian citizen to do so, this meant that the defendant was left paying excessively high US medical costs, as opposed to the usually low English rates.

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. This is because NHS medical care is not free - to the contrary it is very expensive, but that cost is simply borne by the government. Since in the grand scheme of things tax-payers fund NHS treatment, the courts do not consider it to be a legitimate means of treating a tortuously acquired injury, since that would simply involve transferring the cost of treatment from the defendant to the tax payer. Thus when considering whether a cost is reasonable, one should pretend (for a short disquieting moment) that the NHS does not exist. Of course, a claimant who opts for NHS care cannot then claim the cost of private healthcare - they are entitled to claim for the medical costs they have borne, and if they have opted for free healthcare, then they have borne no medical costs.

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 need to hire domestic help. 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.

The law has developed a particular way to deal with situations in which outside assistance (medical or domestic) is provided by family of 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 loss of wages provided the cost.) 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 this was not binding. 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 perceptive to the cold, as in Hodgson v Trapp [1989] AC 807, or a claimant who requires special clothing, as in Donnelly (above), or must wash their bedding more often due to increasing hygiene needs, as in Leong San Tan [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. 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 piece 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 are those which cannot be quantified at the time of trial, and instead are more prospective in nature. 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 all of these calculations 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 of 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 mitigate their loss of earnings by taking on another job. 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. Of course, claimants don’t have to work, but the court will imagine that they will in calculating their damages; in other words, claimants are expected to mitigate their future losses. A claimant cannot argue that a particular line of work is below them - this simply doesn’t chime with the equitable practice of law. However, it might be that through over-qualification a claimant won’t be accepted to certain unskilled work. Nevertheless, the claimant must demonstrate this fact by applying for such jobs and bringing the subsequent failed job applications as evidence (or else show in some other way that they are prevented from working).

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 (which they were likely to ascend) they will be able to claim higher damages to reflect career advancement, as in Brittain v Garner [1989] (The Times, 18 Feb).

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 care 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. This argument is not difficult to make, however; thus in Woodrup v Nichol [1991] PIQR 104, the claimant’s ‘proof’ that they would use private healthcare included a desire to use the consultant of their choice, a desire to make their own scheduling decisions (rather than relying on appointments as given by the NHS), and a desire to benefit from medication and techniques as they became privately available (rather than having to wait for such things to be made NHS-available). Since these arguments could be applied to just about any person, it appears it is not difficult for a claimant to show that they will be seeking the benefits of private medical care.

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 any costs (this principle can be found in Cassell 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, it was held that the claimant’s need for hydrotherapy could not be met by travelling to a local pool, and that a cost of a small pool was reasonable. In contrast, the court noted that if such a need could be reasonably met in a cheaper way, that element of the claim would fail.

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 Shepherd [1963] UKHL 3, at 1: “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, does not include mere sorrow or grief, as per Kralj v Kaye [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 Shepherd [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.

Whilst Lord Reid later comes down in favour of the ‘real loss’ definition it effectively encompasses the first. Thus loss of amenity is based on working out what exactly the claimant has lost out on. 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 then a sedentary shut-in. Examples of such losses include loss of ability to fish, as per Moeliker v A Reyolle & 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 [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 little to no harm has occurred. 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. Of course, aggravated or serious attacks on a claimant’s rights will result in higher (and thus non-nominal) awards of damages, as per 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, then they will award contemptuous damages to the claimant. This is often as small of an amount as possible - as low as 1p. Consider a case in which a claimant has fly-tipped an empty packet of crisps into your garden. A lengthy 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 [1998] 3 WLR 862 - the first two courts awarded the claimant 1p of damages (and the third ultimately found for the defendants). It should be noted that the issue of costs can mean the defendants still have to pay more that 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 those reflecting the fact that a case has been aggravated by one factor or another, usually for humiliation or distress caused to the claimant. 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 (as long as the claim itself is based on something more concrete).

Exemplary Damages

Exemplary damages are similar to aggravated damages, but rather than stemming from injury to the claimant’s feelings they stem from the defendant’s own poor behaviour, with the aim of making an example of their conduct. This can be seen in Thompson v Metropolitan Police Commissioner.

Payment

Originally, the only option open to the courts was lump sum payments at the time of the judgement. 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 (Variation of Periodical Payments) Order 2005 was passed, which allows the court to rule that damages should be paid periodically, and then reviewed upon the deterioration or improvement of the claimant’s injury.

Although there was a point at which certain judges would award extra damages to account for inflation, this is now not the case. It is assumed that claimants will have the foresight to invest or save their lump sum in a way which will deal with inflation (via interest rates or similar).

Injunctions

An injunction is a declaration by a court that the defendant must behave in a certain manner. They come in two main forms - prohibitory, in which a claimant is prohibited from doing something and mandatory, in which the defendant must do something. As well as being either prohibitory or mandatory, injunctions will be either quia timet, final, or interim.

Injunctions are a matter of court discretion. Whilst damages are available to claimants in all eventualities (as long as they have a valid case), injunctions are an equitable remedy, and thus whether they are granted depends on the will of the court. 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. The tendency is to grant an injunction where there is a good chance of the tortious behaviour being repeated. Thus in Wollerton and Wilson Ltd v 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. Instead, an injunction was used to prevent the behaviour from reoccurring.

The courts won’t always grant an injunction if the tortious behaviour is trivial, or if the defendant is not at fault. 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 strong possibility of damage occurring in the future - in other words, there must be some utility to the injunction.

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 disproportionally high when compared to an injunction.

Thirdly, the defendants must have behaved unreasonably. The court won’t seek to interfere with reasonable behaviour.

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

Injunctions can also be divided up into three groups, depending on when a tortious event is likely to occur: quia timet injunctions, final injunctions and interim injunctions.

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 irredeemable 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 prerequisites which must be fulfilled before they are granted were also mentioned in Redland Bricks: there must be evidence that the defendant is intending to take an act; that act must be one which will cause significant irreparable damage to the claimant; and there must be evidence that the defendant will not desist unless a quia timet injunction is granted.

Final injunctions are simply those which are granted after a tort has been committed, but where it is likely that the tort will reoccur. This might be an order to stop holding noisy warehouse parties, or an order to stop a series of threating phone-calls.

Interim (or interlocutory) injunctions apply whilst the tortious activity is ongoing (or else where there is a high chance of it reoccurring in the near future). 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 we 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. Thus claimants must have acted fairly in order to benefit from equity. This can be seen in Armstrong: the claimant was held to have acquiesced to the tortious act.

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