Tort Remedies

• Mitigation of loss


  A claimant who has suffered a loss as a result of a tort is entitled to damages for any losses, but the claimant is expected to take reasonable steps to mitigate any losses
• 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.
• Mitigation of loss: The Flying Fish

  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
• Types of damages payable for tort

  • General damages
  • Special damages
  • Nominal damages
  • Contemptuous damages
  • Aggravated damages
  • Exemplary damages
• Nominal damages


  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!
• Contemptuous damages


  Unlike nominal damages, they can be awarded for any tort
• Aggravated damages


  Awarded to compensate the claimant for mental distress, humiliation and similar non-pecuniary loss
• Exemplary damages


  Awarded to punish and deter the defendant
• Rookes v Barnard [1964]
• 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."'
• Circumstances when exemplary damages can be imposed (Rookes v Barnard)


  • 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
• 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.
• Quia timet injunction


  An injunction granted to prevent an anticipated harm or injury
• 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".'
• Interim injunction


  An injunction granted on a temporary basis, pending the final determination of the case
• Balance of convenience


  The court must weigh 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.'
• Final injunction


  An injunction granted at the end of a case, after the court has made a final determination
• A claimant will not be granted an injunction unless he/she can establish that damages would not be an adequate remedy
• The following are three of the maxims of equity