Remedies: Damages, Remoteness, Mitigation and Injunctions
Remedies questions test whether you can quantify loss and choose the right remedy, rather than whether liability exists at all.
Damages
Damages aim to put the claimant in the position he would have occupied but for the tort.
- Special damages are specifically pleaded and proved: medical expenses, lost earnings to date, repair costs.
- General damages are awarded for future loss, pain and suffering, and loss of amenity; they are inferred rather than itemised.
- Nominal damages mark a right infringed without loss (trespass to land).
- Aggravated damages compensate for the manner of the wrong - distress, humiliation - and are common in defamation and trespass to the person.
- Exemplary damages punish. Rookes v Barnard confined them to oppressive, arbitrary or unconstitutional action by servants of government, conduct calculated to profit, and express statutory authorisation; Cassell v Broome restricts them to the first two. Personal injury heads are pain, suffering and loss of amenity, past and future loss of earnings, and future care, calculated with a multiplier.
Remoteness and mitigation
Only damage of a kind reasonably foreseeable is recoverable, applying the Wagon Mound principle. Mitigation is a duty of reasonableness, not a duty to minimise at all costs: the claimant must act reasonably, but need not take risks with his health or reputation. Loss avoided or avoidable is not recoverable, and benefits received from a more advantageous substitute transaction may be credited against the claim (British Westinghouse v Underground Electric Railway). Betterment and collateral benefits must be considered.
Injunctions
- Prohibitory injunctions restrain a continuing or threatened wrong and are the usual remedy in nuisance and persistent trespass.
- Quia timet injunctions prevent threatened harm before it occurs.
- Interlocutory (interim) injunctions preserve the status quo pending trial; the claimant must show a serious question to be tried and that the balance of convenience favours the order (American Cyanamid v Ethicon), and in defamation must usually show that the words are clearly defamatory.
- Damages in lieu may be awarded where the injury is small, capable of compensation and an injunction would be oppressive (Shelfer v City of London Electric Lighting).
Worked example
A claimant's taxi is negligently destroyed. Damages cover its market value, loss of earnings during replacement if reasonably incurred, and mitigation costs. If he delays unreasonably before hiring a replacement, the loss for the delay is not recoverable because it was avoidable.
Traps that cost marks
Confusing aggravated and exemplary damages; treating mitigation as a duty to eliminate loss entirely; claiming exemplary damages in ordinary negligence; and forgetting that injunctions in nuisance are discretionary.