Remedies & damages in tort

TOR.10 — Remedies & Damages in Tort

The compensatory aim

The governing principle is restitutio in integrum: put the claimant in the position they would have been in had the tort not occurred (Livingstone v Rawyards Coal (1880)). Tort looks backward to restore the status quo ante — contrast contract, which protects the expectation/forward-looking interest.

Categories of damages

• Special damages — accrued, precisely calculable pre-trial losses (lost earnings to date, medical bills, repair costs). Pleaded and proved as exact figures.
• General damages — non-precise future/non-pecuniary losses, assessed by the court: PSLA (pain, suffering, loss of amenity), future loss of earnings, future care.
• Aggravated (compensate for injury to feelings/dignity from the manner of the wrong) vs exemplary/punitive (punish; only in the three Rookes v Barnard categories: oppressive/unconstitutional government action; conduct calculated to profit; statute authorises).
• Nominal (right infringed, no loss — e.g. trespass) vs contemptuous damages.

Personal injury quantum

• PSLA: tariff by reference to the Judicial College Guidelines plus comparable awards.
• Future loss of earnings: multiplicand × multiplier, the multiplier set using the Ogden Tables and the statutory discount rate (currently +0.5% in England & Wales from 11 Jan 2025 under the Damages Act 1996 / Civil Liability Act 2018).
• Lump sum vs periodical payments orders (PPOs) — court may order PPOs (Damages Act 1996 s.2) for future loss/care.
• Deductions: recoupment of state benefits (Social Security (Recovery of Benefits) Act 1997).

Limits and reductions

• Causation, remoteness (The Wagon Mound — reasonable foreseeability of type of damage), and mitigation cap recovery — the claimant cannot recover avoidable losses.
• Contributory negligence reduces damages by a "just and equitable" proportion (Law Reform (Contributory Negligence) Act 1945 s.1) — a reduction, never a complete defence.

Equitable & other remedies

• Injunctions (prohibitory/mandatory; interim per American Cyanamid; quia timet) — discretionary; damages in lieu under Senior Courts Act 1981 s.50 (the Shelfer/Coventry v Lawrence approach in nuisance).
• Abatement (self-help, nuisance) — use cautiously.

Common traps

• Don't apply contract's expectation measure to tort.
• Contributory negligence reduces; it does not bar.
• Exemplary damages are exceptional — confined to the Rookes v Barnard categories.
• The discount rate is positive (+0.5%) in E&W — increases the multiplier reduction; do not confuse with the old −0.25%/−0.75% rates.
• Aggravated ≠ exemplary: one compensates, the other punishes.