Common Law Remedies Lecture

Lecture # 12
Common Law Remedies

By: Salik Aziz Vaince
[0313-7575311]
 Introduction
 The law of tort is a development of the maxim “Ubi jus Ubi Remedium” there is no wrong without a
remedy. A person suffering a legal injury and damage can succeed under law of tort only if his case is
covered by recognized Tort.
 The two principal remedies available to the victim of a tort are damages to compensate for the harm
he has suffered and, where appropriate, an injunction to prevent future harm. Damages are the
predominant remedy. Certain forms of self-help, such as abatement of a nuisance or self-defence, can
be regarded as remedies, but the courts do not encourage this.
 Meaning of remedy
 Osborn’s Concise law dictionary
 By which the violation of a right is prevented, redressed, or compensated.
 The legal means to recover a right or obtain redress for a wrong.
 Kinds of Remedies in Tort
 Judicial Remedies
 Remedies are said to be judicial when they are granted by the Court in an action filed by the injured
party against the wrong doer.
 Extra Judicial Remedies
 Meaning: The expression “extra judicial” refers to something which is done without judicial
proceedings.
 Definition: Extra judicial remedies are those which are open to an injured party to adopt when he
takes the law into his own hand, and helps himself in the matter. These are available to the party by his
own acts alone, e.g. self-defense.
 Damages
 Introduction
 Damages are legal or judicial remedy in the law of tort. The court may grant damages to injured party.
Damages in law of tort are usual remedy it is the money compensation which is awarded to the
plaintiff after proof of commission of tort against him by the defendant.
 The fundamental principle applied to the assessment of an award of damages is that the claimant
should be fully compensated for his loss. He is entitled to be restored to the position that he would
have been in, had the tort not been committed, insofar as this can be done by the payment of money.
 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39
 User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land,
even though the site was too small for the appellant to have mined the coal himself. The appellant was
©VLC Publishers www.vlc.com.pk Page 1

also awarded damages for the damage done to the houses on the surface. If damages are to be
awarded at all, the aim must be to put the injured parties into the same position as far as money will
allow as if they had not sustained the wrong for which they are being compensated.
 Lord Blackburne said: ‘I do not think there is any difference of opinion as to its being a general rule
that, where any injury is to be compensated by damages, in settling the sum of money to be given for
reparation of damages you should as nearly as possible get that sum of money which will put the party
who has been injured, or who has suffered, in the same position as he would have been in if he had not
sustained the wrong for which he is now getting his compensation or reparation. That must be
qualified by a great many things which may arise–such, for instance, as by the consideration whether
the damage has been maliciously done, or whether it has been done with full knowledge that the
person doing it was doing wrong. There could be no doubt that there you would say that everything
would be taken into view that would go most against the wilful wrongdoer–many things which you
would properly allow in favour of an innocent mistaken trespasser would be disallowed as against a
willful and intentional trespasser on the ground that he must not qualify his own wrong, and various
things of that sort.’
 Meaning of damages
 Damages are the compensation in form of money.
 Oxford concise dictionary
 A sum of money claimed or awarded in compensation for a loss or on injury.
 Black’s law dictionary
 Money claimed by or ordered to be paid, a person as compensation for loss or injury.
 Definition of damages
 Damages are the money compensation claimed by the injured party and awarded by the court.
 Damages are the sum of money which a person wronged is entitled to receive from the wrong does as
compensation for the wrong.
 Compensation for causing loss or injury through negligence or a deliberate act, or a court's estimate or
award of a sum as a fine for breach of a contract or of a statutory duty.
 Objects of damages in law of tort
 The most important objects of damages in law of tort as under:
1. To compensate a person for the tort committed against him.
2. To penalize the tort feasor for the tort committed by him.
3. To provide machinery of law to settle dispute by lawful means.
 Importance of remedy of damages
 Damages are the pecuniary satisfaction which a plaintiff may obtain by success in an action. The court
award damages or the injury or the damages by the wrongful act of the defendant. In tort actionable
on prove of damage, plaintiff must plead and prove the damage suffered by him from violation of his
right by the defendant. Damages are a judicial remedy which is available to a party in certain cases of
tort. The nature of the damages is compensatory.

 Difference between damage and damages
 Damage: damage means loss which a person suffers from a trot committed against him loss may be of
money, reputation, goodwill, health or service.
 Damages: Damages is money compensation awarded by the court to the plaintiff.
 Kinds of damages
 Damages divided into following kinds:
 Contemptuous damages
 Awarded where technically a legal wrong is committed and circumstances disclosed are such that court
feels that no action should have been brought, mostly in defamation cases.
 The claimant may then be at risk on costs, which are normally awarded to the successful party.
 Nominal damages
 Nominal damages will be awarded where the claimant proves that the defendant has committed a tort
but the claimant has suffered no loss.
 They are awarded by the court to the plaintiff, not by way of compensation, but by way of recognition
of some legal right of his which the defendant has infringed, e.g. trespass.
 Token damages awarded to redress a violation of a legal right that the law deems necessary to protect,
even if there has been no actual harm or monetary loss. By granting nominal damages, the court
affirms that a legal right has been violated. While the plaintiff has no right to real damages, the court
gives her the right to a judgment because of her legal right has been infringed (Mediana (The) [1900] A
C 113 at 116 (H L.), per Lord Halsbury, L.C.). Nominal damages are generally recoverable by a plaintiff
who successfully establishes that he has suffered an injury caused by a defendant’s wrongful conduct,
but cannot prove a loss that can be compensated. For example, an injured plaintiff who proves that a
defendant’s actions caused the injury but fails to submit medical records to show the extent of the
injury may be awarded only nominal damages. The amount awarded is generally a small, symbolic sum,
such as one dollar. Nominal damages are available whether the action is in contract or tort.
 Substantial damages
 They are sum of money which is awarded to the plaintiff as a fair and equitable compensation for the
injury suffered by him. Such damages are awarded in great majority of actions in tort.
 Exemplary damages
 These are awarded in cases where there has been great injury by the expression of indignation (Anger
aroused by some perceived offense or injustice) at the conduct of the defendant whenever he has
shown a conscious disregard of the plaintiff’s right.
 General damages
 General damages are such as the law will presume to be the natural consequences of the defendant’s
acts.
 General damages are determined by the court as they are not capable of being precisely calculated at
the time of trial. They must be stated but no precise figure can be placed on them. General damages

are strictly described as damages which are presumed to flow from torts which are actionable per se
(without the need to prove loss or damage).
 special damages
 Special damages are losses which can be precisely calculated at the time of trial and are presented in
the form of a calculation. Special damages are strictly described as damages which the claimant can
prove as part of their action. Therefore, in Negligence a claim for actual loss is classified as special
damages.
 Difference
 The classification of damages, as general or special, has practical relevance for the calculations relating
to interest payments.
 There is a second and much more commonly used meaning of the distinction between general
damages and special damages. In practice, losses that are capable of being calculated with reasonable
accuracy are pleaded as 'special damages'. Inexact or unliquidated losses (although they are not
presumed and therefore must be pleaded) are compensated by an award of 'general damages'.
 For example, in a personal injuries action, accrued expenses such as damaged clothing, medical
expenses and loss of earnings to the date of trial are special damages. Pain and suffering and loss of
amenity (and prospective loss of earnings) are treated as general damages.
 General Damages (also called “Non-Pecuniary Damages”)
 Damages for non-monetary losses suffered by a plaintiff. In contrast to special damages, these
damages are called “general” because they cannot be assessed exactly. General damages have long
been characterized as those that the law presumes to flow from every breach of contract or other
invasion of the plaintiff’s rights.
 In a personal injury action, for instance, examples of such losses suffered include pain, suffering,
disfigurement, loss of enjoyment of life and loss of amenities. Non-pecuniary damages are
compensation for past, present and future losses, subject to the upper limit for such an award
established by the Supreme Court of Canada. In determining fair compensation in the particular
circumstances of a case, courts look at such factors as the plaintiff’s age, the nature of the injury, the
severity and duration of the pain, the level of the disability and the loss of lifestyle or impairment of
life.
 Aggravated Damages
 Aggravated damages by definition will generally increase damages assessed under the general rules
relating to the assessment of damages. Aggravated damages are compensatory and may only be
awarded for that purpose. Aggravated damages are different from punitive damages, which may only
be awarded in circumstances where the defendant’s conduct is of such nature that it merits
punishment. Aggravated damages will frequently cover conduct that could also be the subject of
punitive damages, but the role of aggravated damages remains compensatory.
 Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085
 Facts: P was wrongfully dismissed from work. At work supervisor was oppressive and made life
horrible. P found work 7 months later. D paid one month severance.

 Issue(s): Can punitive or aggravated damages by awarded for wrongful dismissal of employment?
 Ratio: The claim for compensation (aggravated damages) for mental distress must be grounded in an
independently actionable conduct. NOTE: due to Whiten you no longer need an actionable wrong.
 Analysis: Role of aggravated damages is compensatory (for plaintiff) – increased over and above the
normal economic loss.
 Damages awarded to compensate a plaintiff for suffering intangible injuries or damages as a result of
the defendant’s actions. It is not the damages that are aggravated but the injury. The damage award is
for aggravation of the injury by the defendant’s misbehavior. Because of the defendant’s conduct, the
measure of damages is increased. The plaintiff’s losses are non-pecuniary.
 Intangible elements such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation,
indignation, outrage, fear of repetition, Wounded pride, damaged self-confidence or self-esteem, loss
of faith in friends or colleagues, and similar matters that are caused by the defendant’s conduct.
 In tort law, aggravated damages resemble damages for “pain and suffering”, one of the conventional
subheads of non-pecuniary loss. The distinction between them lies mainly in causal sequence.
Aggravated damages compensate for distress caused by the character of the defendant’s wrongdoing,
whether pre- or post-injury. Damages for pain and suffering compensate for distress caused by the
personal injury that results from the wrongdoing.
 The court may take into account the manner in which the tort was committed in assessing damages.
If it was such as to injure the claimant's proper feelings of dignity and pride then aggravated damages
may be awarded. Aggravated damages are solely compensatory, but they are higher than would
normally be the case to reflect the greater injury to the claimant.
 Aggravated damages should be distinguished from exemplary the damages, which are punitive in
nature. It has been said that the distinction between aggravated and exemplary damages is that
aggravated damages are awarded for conduct that shocks the claimant (and therefore constitutes a
real loss), and exemplary damages are awarded for conduct the shocks the court.
 Rookes -v- Barnard (No 1); HL 21-Jan-1964
 The court set down the conditions for the award of exemplary damages. There are two categories. The
first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second
category are those in which the defendant’s conduct has been calculated by him to make a profit for
himself which may exceed the compensation payable to the plaintiff.
 Lord Devlin said: “[W]here a defendant with a cynical disregard for a plaintiff’s rights has calculated
that money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary
for the law to show that it cannot be broken with impunity. This category is not confined to money
making in the strict sense. It extends to cases in which the defendant is seeking gain at the expense of
the plaintiff some object – perhaps some property which he covets – which either he could not obtain
at all or not obtain except at a price greater than he wants to put down. Exemplary damages can
properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay. . In a case
in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum
which they have in mind to award as compensation (which may, of course, be a sum aggravated by the
way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his
outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it,
then it can award some larger sum.”
 Lord Evershed: “Nowadays, when it is a rare thing to find a preamble in any public general statute, the
field of inquiry is even narrower than it was in former times. In the absence of a preamble there can, I
think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the
words of an enactment. It must be shown either that the words taken in their natural sense lead to
some absurdity or that there is some other clause in the body of the Act inconsistent with, or
repugnant to, the enactment in question construed in the ordinary sense of the language in which it is
expressed.”
 the House of Lords held that, except where specifically authorised by statute, exemplary damages
should be awarded only in two categories of case:
 (a) Oppressive, arbitrary or unconstitutional action by servants of the government.
 (b) Where the defendant's conduct has been calculated by him to make a profit for himself which may
well exceed the compensation payable.
 Aggravated damages aim to compensate the claimant for additional suffering incurred because of the
defendant's ill-motivated actions.
 THOMPSON V METROPOLITAN POLICE COMMISSIONER [1997] 2 ALL ER 762
 FACTS: The plaintiff was wrongfully arrested and unlawfully detained by the defendant. There was
additional evidence that the defendant had deliberately humiliated and insulted the plaintiff during
this time.
 ISSUE: How much should be awarded in aggravated damages?
 HELD: Lord Woolf: .. In the future the judge will include in his summing up a bracket for basic damages,
an indication that the award for aggravating circumstances should not normally exceed the amount of
the basic damages (except where the basic damages are modest) and it would require the most
exceptional circumstances for aggravated damages to be as much as twice the basic damages....
 Pecuniary Damages (also called “Special Damages”)
 Damages that can be exactly measured in money. Damages intended to compensate a plaintiff for a
quantifiable monetary loss. Special damages mean the particular damage (beyond the general
damage) that result from the particular circumstances of the case. Examples of such losses include:
medical bills, lost wages, and repair costs.
 Liquidated Damages
 Damages agreed upon by the parties entering into a contract, to be paid by a party who breaches the
contract to a non-breaching party. These are available when damages may be hard to foresee and
must be a fair estimate of what the damages might be if there is a breach. Liquidated damages may be
used when it would be hard to prove the actual harm or loss caused by a breach. The amount of
liquidated damages must be a reasonable estimate of the actual damages that a breach would cause. A
contract term setting unreasonably large or disproportionate liquidated damages may be void because
it constitutes a penalty or punishment for default.

 Punitive Damages (also called “Exemplary Damages”)
 Intended to punish the breaching actors and to deter them from committing future breaches. Punitive
damages are awarded not to compensate a plaintiff for injury or loss suffered but to penalize a
defendant for particularly egregious, wrongful conduct.
 At common law, punitive damages can be awarded in any civil suit in which the plaintiff proves that the
defendant’s conduct was “malicious, oppressive and high-handed [such] that it offends the court’s
sense of decency”:
 Hill v. Church of Scientology, [1995] 2 SCR 1130
 Facts: Manning and Church of Scientology held a press conference to publicly announce criminal
contempt proceedings they were starting against Hill, a Crown attorney. Found liable for libel at trial.
 Issue(s): Is the common law of defamation inconsistent with the guarantee of freedom of expression,
and if so, can it be scrutinized?
 Ratio: Charter values (in private litigation) are balanced differently than Charter rights. There is no
formal s.1 analysis. Courts always have power to modify common law to bring into conformity with the
Charter.
 Analysis: Charter is a “restatement of fundamental values” which guide and shape democratic system,
so court can incrementally revise the common law to bring in line
 They will not go further than necessary when evaluating Charter values
 Most private litigants can do is claim the common law is inconsistent with Charter values, not Charter
rights (because rights do not exist absent state action)
 This avoids subjecting all court order to Charter scrutiny
 A balancing between principles
 More flexible than a traditional s.1 analysis
 Charter values are balanced against the principles underlying the common law
 Party alleging common law is inconsistent bears onus of proof that:
 1. The common law fails to comply with Charter values
 2. The common law should be modified
 Comments: In 2010, court changed the common law of defamation to add the defence of responsible
communications in matters of public interest (addressing libel chill).
 “The test thus limits the award to misconduct that represents a marked departure from ordinary
standards of decent behaviour”:
 Whiten v. Pilot Insurance Co., 2002 SCC 18
 In Whiten v. Pilot Insurance Co., the Supreme Court of Canada defined a rational punitive damages
award as being proportionate to the blameworthiness of the defendant’s conduct, the vulnerability of
the plaintiff, the harm or potential harm directed specifically at the plaintiff, the advantage wrongfully
gained by the defendant, and the need for deterrence, all with a view to the other penalties assessed
against the defendant because of its misconduct. In that case the Supreme Court set a high-water mark
of C$1-million for punitive damages against insurers.

 If it is particularly difficult to assess the damages that should be awarded to a claimant, in monetary
terms, then the courts can impose exemplary or punitive damages. The courts use these damages to
punish the defendant and to act as deterrence to others, so can award high sums in extreme cases.
 ROOKES V BARNARD [1964] AC 1129
 A court may only award exemplary damages if: statute expressly authorises them, there is oppressive,
arbitrary or unconstitutional action by government officials, or where the defendant's conduct was
calculated to earn a profit which might exceed the compensation which the court may order to be
paid.
 CASSELL & CO V BROOME [1972] AC 1027
 FACTS: The defendant published a libellous book about a Navy officer in World War II.
 ISSUE: Could exemplary damages be awarded?
 HELD: The court awarded £25 000 exemplary damages because the defendant acted on a cynical
calculation that the profit to be made from committing the tort would exceed the compensation
payable.
 KUDDUS V CHIEF CONSTABLE OF LEICESTERSHIRE CONSTABULARY [2001] 3 ALL ER 193
 The House of Lords reaffirmed the categories for exemplary damages set out in Rookes v Barnard
[1964]. The court highlighted that exemplary damages should be awarded, if any of the categories are
satisfied, irrespective of the cause of action.
 MUUSE V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2010] EWCA CIV 453
 FACTS: The claimant was unlawfully detained by the defendant.
 ISSUE: Could exemplary damages be awarded?
 HELD: Thomas LJ: .. There are a number of factors that show that the unlawful imprisonment of [the
claimant] in this case was not merely unconstitutional but an arbitrary exercise of executive power
which was outrageous. It called for the award of exemplary damages by way of punishment, to deter
and to vindicate the strength of the law....
 Restitutionary Damages
 These are not really legal damages, but rather are an equitable remedy to prevent a party from being
unjustly enriched. For example, in a contracts case, if one party has delivered goods but the other
party failed to pay, they may be entitled to restitutionary damages to prevent the unjust enrichment.
 Restitution is a distinct body of law governed by its own developing system of rules. Breaches of
fiduciary duties and breaches of confidence are both wrongs for which restitutionary relief is often
appropriate.
 International Corona Resources Ltd. v. LAC Minerals Ltd., [1989]
 Facts: International Corona was a junior mining company that was investigating the mineral potential
of a property at Hemlo in Northern Ontario. Lac Minerals, a senior mining company, heard of Corona's
activity and arranged to visit the site. Corona showed Lac's representatives detailed information about
their geological findings, together with their underlying theory about its mineral potential and
importance. In further discussions about development and financing options, detailed private
information was disclosed. Corona was advised by Lac to aggressively pursue the Williams property.
The matter of confidentiality was not raised. Lac proceeded to stake their own claims east of Corona's
property and acquired the property on which Corona had been working, without the latter having been
advised of Lac's intentions. Subsequent attempts by Corona to negotiate the transfer of Lac's interest
in the property failed. Corona formed a joint venture with Teck Corporation to develop a mine on the
Corona property, and proceeded to sue Lac for the return of the property.
 Held: The trial judge held that there was no binding contract, but Lac was still liable for breach of
confidence and breach of fiduciary duty. He ordered the return of the property to Corona, but allowed
Lac's claim in part for a lien for the cost of improvements and other payments.
 The Ontario Court of Appeal affirmed the trial judge's ruling, also noting that a constructive trust was
an appropriate remedy for both the breach of confidence and fiduciary duty.
 There were three questions before the Supreme Court of Canada:
 Did a fiduciary relationship exist between Corona and Lac which was breached by Lac's acquisition of
the property?
 Did Lac misuse confidential information obtained by it from Corona and thereby deprive Corona of the
property?
 If either question were answered affirmatively, what was the appropriate remedy?
 The court ruled unanimously that there had been a breach of confidence, and by 3-2 it was held that
no fiduciary duty existed in this case, and by 3-2 that the imposition of a constructive trust on Lac in
favour of Corona was the appropriate remedy.
 Measure of damages
 The law of torts has not prescribed any method or scale for assessment of damages. It depends upon
variety of causes, circumstances and fact of a particular case.
 The principle restitutio in integrum (putting the claimant in the same position they would have been if
the tort had not been committed) guides the assessment of damages. Damages aim to compensate the
claimant based on the fault of the defendant. Claimants may also receive compensation through
additional sources, such as insurance or the welfare system.
 LIVINGSTONE V RAYWARDS COAL CO (1880) 5 APP CAS 25
 Lord Blackburn: .. Where any injury is to be compensated by damages, in settling the sum of money to
be given for reparation of damages you should as nearly as possible get that sum of money which will
put the party who has been injured, or who has suffered, in the same position as he would have been
in if he had not sustained the wrong for which he is now getting his compensation or reparation....
 "The question ... concerns the principles upon which damages must be evaluated or quantified in terms
of money. This may appropriately be called the question of measure of damages.
 "The principle adopted by the courts in many cases ... is that of restitutio in integrum. If the plaintiff
has suffered damage that is not too remote, he must, as far as money can do it, be restored to the
position he would have been in had that particular damage not occurred."
 In the context of tort law, Canada's highest court used these words in Cooper v Miller:
 "The fundamental principle is that the plaintiff in an action for negligence is entitled to a sum of
damages which will return the plaintiff to the position the plaintiff would have been in had the
accident not occurred, in so far as money is capable of doing this. This goal was expressed in the early

cases by the maxim restitutio in integrum. The plaintiff is entitled to full compensation and is not to be
denied recovery of losses which he has sustained.... (T)he basic rule is that it is the net consequential
loss and expense which the court must measure.
 "At the same time, the compensation must be fair to both the plaintiff and the defendant.
 "In short, the ideal of the law in negligence cases is fully restorative but non-punitive damages. The
ideal of compensation which is at the same time full and fair is met by awarding damages for all the
plaintiff's actual losses, and no more. The watchword is restoration; what is required to restore the
plaintiff to his or her pre-accident position."
 Mitigation of Damages
 Introduction
 The duty to "mitigate damages" means that, in certain circumstances, a person who is harmed by
someone else's bad act has a duty to "mitigate" the harm.
 In plain language, it means that an innocent person who has been harmed must take action to stem
the harm and minimize the amount of damages the bad actor has to pay. The duty to mitigate
damages also means that an innocent person who does not take action to mitigate may not get full
money damages from the wrongdoer.
 Mitigation may seem to force an innocent person to let the wrongdoer off the hook, but there can be
good reasons for it. Of most importance, it can reduce overall harm.
 Traditionally, the duty to mitigate harm applies in two areas of law - tort and contract law, including
employment contracts. For example, suppose that an employer promises an employee a job for one
year but, even though the employee does good work, the employer fires the employee. That firing
violates the employer's contract with the employee, so the employer must pay the employee for the
rest of the year.
 But the requirement to mitigate means that the employee cannot just sit back and collect back pay.
Instead, the innocent employee has a legal obligation to "mitigate" the harm caused by the employer's
wrongful action by making a serious search for a new job.
 Definition
 The use of reasonable care and diligence in an effort to minimize or avoid injury.
 Explanation
 Under the mitigation of damages doctrine, a person who has suffered an injury or loss should take
reasonable action, where possible, to avoid additional injury or loss. The failure of a plaintiff to take
protective steps after suffering an injury or loss can reduce the amount of the plaintiff's recovery. The
mitigation of damages doctrine is sometimes called minimization of damages or the doctrine of
Avoidable Consequences.
 In Tort Law mitigation of damages refers to conduct by the plaintiff that, although not constituting a
civil wrong itself, may reduce the plaintiff's recovery. For example, if the victim of an assault used
provocative (exciting controversy) words prior to the assault, the words may mitigate the plaintiff's
damages. Most states limit mitigation of damages for provocative words to a possible reduction in
Punitive Damages, (Inflicting punishment) as opposed to Compensatory Damages.

 A tort victim also should act to mitigate damages subsequent to the wrongful acts of another. For
instance, assume that the victim in the assault example suffers a broken leg. If the victim refuses to get
medical treatment and the leg eventually must be amputated, the defendant may be liable only for the
reasonable medical expenses to repair a broken leg. Because a reasonable person would seek medical
attention after suffering a broken leg, a court could find it unreasonable to make the defendant pay
for additional damage that the victim could have prevented with minimal effort.
 If it is unreasonable to expect the victim to mitigate damages following the injury, the defendant may
be held liable for subsequent injury to the victim that stems from the wrongful act. For example, if the
assault victim lives alone in a rural area without a source of transportation, and if the leg requires
amputation because the victim could not get to a hospital, the defendant may be held liable not only
for a broken leg but for the medical expenses, pain and suffering, and lost wages associated with the
amputation.
 Mitigation of loss
 A claimant who has had a legal right infringed is entitled to recover damages. The amount (i.e.
quantum) of damages awarded by Courts is restricted by two main principles, namely that the loss is
not too remote and claimant must mitigate its loss.
 The law operates so as to not entitle recovery of damages which could have reasonably been
mitigated by the claimant. The principles apply equally in breach of contract cases and tort cases.
 Mitigation of loss is concerned with the claimant's responsibility to avoid avoidable losses by taking all
reasonable steps to do so. Claimants are not permitted to stand aside and let damage accrue with the
view that it will simply be recovered from the defendant in due course.
 The claimant is not required to take unreasonable steps or incur unreasonable sums in doing so. Steps
which are reasonable will depend upon the circumstances of the case, including the nature and type
of (1) contract, (2) the breach, (3) the factual matrix such as the circumstances of the claimant.
 The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but
the first principle is qualified by a second, which imposes on a claimant a duty of taking all reasonable
steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the
damage which is due to his neglect to take such steps.
 A claimant should not profit from the incident, as the compensation system aims to restore them to
the position they would have been in if the tort had not occurred. Therefore, a claimant cannot claim
damages for losses which could have been avoided by taking reasonable steps. The duty to mitigate
means that a claimant must take all reasonable steps to minimise their losses.
 MARCROFT V SCRUTTONS [1954] 1 LLOYD'S REP 395
 FACTS: The plaintiff was injured by the defendant's negligence. However, the plaintiff then refused to
attend hospital and his injuries worsened.
 ISSUE: How should the damages be assessed?
 HELD: The plaintiff had a duty to mitigate his losses and therefore, the losses subsequent to his refusal
to attend hospital were not recoverable.

 Steps in Mitigation of Loss
 Whether or not the claimant has mitigated its loss is a question of fact. A claimant's entitlement to
recover damages and the role of mitigation may be summarized as follows:
 Damage suffered as a result of the wrongful conduct where reasonable steps could have been taken to
avoid the loss is not recoverable.
 If the reasonable steps exacerbated (Make worse) the damage caused, the claimant may be entitled to
recover the additional damage following the attempt to mitigate.
 Loss avoided by taking reasonable steps cannot be recovered
 The claimant is entitled to recover it actual loss, after it has taken steps to mitigate. The defendant is
entitled to receive the benefit of mitigation on the part of the claimant. Court will not allow the
claimant to recover loss which it does not mitigate.
 It will be for the Court to decide whether the step would have been in any event, or whether it was
taken in mitigation. The latter are not likely to affect the sum of damages payable by the defendant.
 Expenditure incurred in taking reasonable steps to avoid loss may be
recovered
 Where the claimant fails to mitigate loss, the process of assessment of damages which the claimant is
entitled to recover on one view becomes a notional assessment of the claimant's loss.
 The Court effectively runs a profit and loss account discounting the damages award where the
claimant fails to mitigate or does not take all reasonable steps to mitigate the loss. Where the claimant
properly takes steps to mitigate, the actual profit and loss account would match the notional profit and
loss account. Put another way, the claimant is entitled to its actual loss after mitigation, whether or not
the claimant actually takes steps to mitigate loss. Accordingly, a claimant does not have a "duty" to
mitigate loss; the law will not allow recovery of loss which has not been mitigated where it would have
been reasonable to do so.
 The requirement to mitigate loss requires the claimant to take any step which a reasonable a prudent
person would ordinarily take in the course of his business to mitigate the loss. The law does not allow
recovery of loss caused by neglecting to take such steps. The claimant is not entitled to charge the
defendant by way of damages with any greater sum than that reasonably needed to expend for the
purpose of making good the loss; the claimant would presumably do so to act in its best interests in
any event. The claimant is entitled to be as extravagant (Recklessly wasteful) as it pleases but not at
the expense of the defendant:
 Darbishire v Warran (1963)
 Pearson LJ: The plaintiff cannot recover from the defendant by way of damages any sum greater than
what is reasonably necessary for the purpose of making good his loss.
 Time for Mitigation of Damage
 The relevant time to mitigate is when the claimant becomes aware of the breach, or ought to have
known that the breach had taken place, rather than where (and if) a breach is foreshadowed (Be a sign
of something to come). After the breach, a reasonable time is allowed to the claimant to decide
what, if anything should be done to mitigate loss. The duty may require him to keep the goods safe and

cease to use them and seek substitute goods, or effect minor repairs to remedy the defects, if that is
reasonable and possible in the circumstances of the case. Delay is likely to be permissible where
negotiations ensue and while there is a reasonable prospect to that the defendant will repair them.
Where there is an anticipatory breach of contract, the duty to mitigate arises when the acceptance of
the breach is communicated to the defendant.
 The onus of proof rests with the defendant to show that the claimant has failed to mitigate its loss,
or show that some part of the loss could have been avoided, by showing that the claimant has acted or
has not acted or failed to act reasonably by taking certain steps and that by doing so the claimant
would have avoided part of the loss suffered.
 Examples: Steps which are likely to be expected to be taken include:
- a buyer obtaining equivalent goods which are reasonably available on the market to obtain goods
which there has been non-performance or defective performance, particularly in a rising market for
the goods;
- a seller is required to make reasonable attempts to sell goods which have been wrongfully rejected
by the buyer;
- In employment contracts, the employee is required to seek employment elsewhere, having regard
of the salary and allowing a reasonable time to gain alternative employment. The effect of
mitigation means that damages will not usually be awarded for an extended period of time of
unemployment where the skill set is readily in demand in the industry in question;
- in contracts for services, a supplier who has been had its contract to supply services repudiated
such that there is no requirement to perform the services is required to offer its services
elsewhere; damages may be mitigated by the loss of a chance;
- where the claimant has delayed obtaining goods in a rising market, the difference between the
contract price and the market price is recoverable, on the assumption that the buyer obtained the
goods within a reasonable time;
- Reasonable steps to remedy loss suffered by defective work. This not to say that the claimant is
required to remedy all works, but not go beyond that which is reasonable to minimize loss.
- Where a greater profit is obtained by procuring substitute goods, the defendant is entitled to the
benefit of that greater profit to pay less damages.
- Claimants may well not be under a duty to mitigate by not shipping goods when the defendant has
communicated that they will not accept them, where it can do so without the assistance or
cooperation of the defendant.
 Court of Appeal rules on duty to mitigate loss
 In Lombard North Central Plc v Automobile World (UK) Ltd [2010] EWCA Civ 20, the Court of Appeal
addressed the important issue of a party's duty to mitigate its loss. This duty arises in claims in contract
and tort, and provides that an injured party cannot recover damages for any loss which could have
been avoided by taking reasonable steps.
 The second limb prohibits unreasonable steps which increase loss. Whilst this case does not create
new law, it is a timely restatement by an appellate court of the applicable principles. In particular, the

Court noted that the duty is not a "demanding one" and the onus is on the defaulting party to
demonstrate that the other side has failed to mitigate its loss.
 Facts: In May 2004 Automobile acquired a rare and expensive car on hire purchase from Lombard for
use in its business as a provider of cars to customers at the luxury end of the market. The car was a
Mercedes-Benz S600 Pullman (the Pullman). The cash price for the Pullman under the contract was
£194,000 and was to be paid by an initial deposit of £24,000 and installments thereafter. Automobile
paid only a few of the initial installments before falling into default. Lombard first issued a notice of
termination and then repossessed the Pullman in March 2005. Subsequently Lombard sold the Pullman
in a private sale for £59,900 following an abortive "fax auction". In December 2006 proceedings were
commenced by Lombard to recover the balance due under the contract and judgment was awarded in
its favor. Automobile was granted permission to appeal and advanced two grounds, namely that:
- Lombard had misrepresented the car as having been manufactured in May 2004 when actually it had
been manufactured in February 2000; and
- Lombard had failed in its duty to mitigate its loss by reason of the inadequate manner in which it had
sold the car.
 Held: The first ground was dismissed and the Court of Appeal went on to consider the mitigation point.
 Duty to Mitigate: Automobile argued that Lombard had not adequately dispensed its duty to mitigate
when reselling the Pullman. Automobile's principal argument was that Lombard had failed to
understand the nature of the Pullman and had undersold it. This was a rare car, Automobile argued,
which could only be properly marketed and sold through specialist dealers allowing a certain amount
of time for the right buyer to emerge. Instead, Lombard had mistaken the Pullman for a Mercedes
S600 Limousine, hence their modest aspirations with regards to its resale value. They had offered the
car for sale through a standard "fax auction" and had sold it, albeit (Even though) eventually by private
sale, for a fraction of its value. The length of time taken from the date of the advertisement to the date
of sale was 11 days. In Automobile's view, Lombard's conduct was inadequate to satisfy its duty to
mitigate against its losses.
 Decision: The Court of Appeal (Rix, Rimer, and Patten LJJ) unanimously dismissed Automobile's
arguments. The Court agreed with the trial judge's finding that Lombard had not been mistaken in its
identification of the Pullman, and had attempted to compare it on Auto trader to its nearest equivalent
- the 600 S Class Mercedes-Benz. The Court also endorsed the trial judge's finding that Lombard "was
careful to obtain the best price obtainable for the vehicle in circumstances in which Lombard was
attempting to recoup its losses by what was in effect a forced sale". Their conduct could not therefore
be subject to any valid criticism.
 It was also significant, in the Court's view, that no proper expert evidence was produced by either
party, especially Automobile. In the original order for directions the judge had granted permission for
such evidence to be adduced and Automobile had sought at one point to rely on a letter from Mr
Loughran, who had originally sold the Pullman to Lombard. Mr Loughran stated that in his view and in
light of market conditions, £150,000 would have been a fair resale price. This was not accepted by the
trial judge to be independent expert evidence, and was rejected as being incorrect in any event. Lord
Justice Rix stressed the importance in his judgment of expert evidence in cases such as these and noted
that the "failure to mitigate is ordinarily established by the opinion of an expert as to the inadequacy of
the price obtained on the sale of a relevant asset".
 Lord Justice Rix concluded that the duty to mitigate is not a demanding one as "it is the party in breach
which has placed the other party in a difficult situation". This translates to a duty only to do what is
reasonable in the circumstances and the burden is on the party in breach to demonstrate the other
side's failure to act reasonably.
 Comment: This case confirms that the duty to mitigate is not onerous (Not easily borne). This is
sensible given the party to whom it applies is usually required to engage in some sort of forced sale.
The judgment also demonstrates the appellate court's reluctance to interfere with the finding of the
trial judge. Whilst Lord Justice Rimer commented that there were factual features which caused him
"some concern" as to whether Lombard had taken reasonable steps to mitigate, in his view the judge's
decision could not be faulted.
 Finally, the case highlights the importance of obtaining expert evidence where a defaulting party is
claiming that the other party has failed to mitigate its loss.
 Remoteness
 A claimant must prove that the damage was not only caused by the defendant but that it was not too
remote. The remoteness of damage rule limits a defendant's liability to what can be reasonably
justified, ensures a claimant does not profit from an event and aids insurers to assess future liabilities.
 The term remoteness refers to the legal test of causation which is used when determining the types of
loss caused by a breach of contract or duty which may be compensated by a damages award.
 Legal causation is different from factual causation which raises the question whether the damage
resulted from the breach of contract or duty. Accordingly, once factual causation is established, it is
necessary to ask whether the law is prepared to attribute the damage to the particular breach,
notwithstanding the factual connection. Damage which is too remote is not recoverable even if there is
a factual link between the breach of contract or duty and the loss.
 Tort: In relation to some types of torts (in particular negligence and nuisance) the test for remoteness
of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the
time of the breach of duty.
 (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) [1961]
AC 388)
 Facts: D negligently discharged furnace oil into the harbor where P’s dock was located. The oil came
into contact with P’s dock and caused damage, but D declined to press suit because damage was
minor. Falling molten metal from the docks later ignited cotton on the mater, which then set fire to the
oil which was on the surface. D had no way to know the oil would burn when spread across the water.
P’s docks burned.
 Judgment for P, upheld on appeal.
 Procedural Posture: The owner of Morts Dock sued the owner of the Wagon Mound for negligence.
The trial court found for the plaintiff even though it found that the oil had a high flash point and the

defendant could not reasonably have known that the oil would ignite. The Supreme Court of New
South Wales affirmed, and the defendant appealed to the Privy Council.
 Issue: Can D’s negligent act impose liability for fire?
 Ruling: No. The defendant is liable only for damages that are reasonably foreseeable or probable
consequences of his breach.
 Reasoning: While it was admitted that D’s act in discharging the oil was negligent, it was also admitted
that D had no way of knowing the oil would be able to burn on the water. The court reversed the
original decision because liability for one negligent act can’t create liability for all damages that result
from that act. Liability can only be imposed for damages that are foreseeable or natural. The court’s
original decision would impose liability for the fire, which was unforeseeable, based on liability for the
foreseeable damage that occurred by upholding the decision, which isn’t allowed.
 Rule: Liability cannot be imposed for unforeseeable damages. Appeal permitted and negligence claim
dismissed, and case remanded (for another cause of action).
 The defendant will be liable for any type of damage which is reasonably foreseeable as liable to
happen even in the most unusual case unless the risk is so small that a reasonable man would in the
whole circumstances feel justified in neglecting it.
 Provided that the kind of damage is reasonably foreseeable, it does not matter that the manner of
infliction or its extent was unforeseeable
 Meaning
 The term remoteness of damage refers to a legal test, which makes a decision whether a tortfeasor
should be liable for the results of their actions. This term can also be defined as an additional
mechanism of controlling tortious liability.
 Definition
 This is a legal test which decides whether a tortfeasor should be liable for the results of their actions.
 Explanation
 The extent to which a defendant is liable for the consequences of his wrongful act or omission. In tort
there is no single test to determine whether or not damage is too remote. In actions for negligence
and other forms of liability based on fault, the defendant is responsible only for damage of the type he
should have foreseen, but if damage of that type is foreseeable, it is no defence that the extent of the
resulting damage is greater than could have been expected.
 In torts of strict liability, the defendant may be liable even for unforeseeable damage. Thus the keeper
of an animal belonging to a dangerous species is liable for any damage it causes, whether foreseeable
or not.
 Remoteness in English Law
 In English law, remoteness is a set of rules in both tort and contract, which limits the amount of
compensatory damages for a wrong.
 In negligence, the test of causation not only requires that the defendant was the cause in fact, but also
requires that the loss or damage sustained by the claimant was not too remote. As with the policy
issues in establishing that there was a duty of care and that that duty was breached, remoteness is

designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly
placed on the defendant.
 Directness
 The traditional approach was that once a breach in the duty of care had been established, a defendant
was liable for all the consequent damage no matter how unusual or unpredictable that damage might
be.
 In Re Polemis & Furness Withy & Company Ltd. [1921] 3 KB 560] while docked, workers employed to
unload the ship negligently dropped a plank (a long, thin, flat piece of timber) into the hold, which
struck something, causing a spark that ignited petrol vapour lying in the hold. The fire destroyed the
whole ship.
 Lords held that although the fire was not a reasonably foreseeable consequence of the plank falling,
there had been a breach of the duty of care and all damage representing a direct consequence of the
negligent act was recoverable. It was determined that once some harm was foreseeable, the
defendant would be liable for the full extent of the harm. That particular consequences are possible
does not make them reasonably foreseeable. This will particularly be the case when there are a
significant number of links constituting the chain. The more links, the less likely that consequence may
be considered reasonably foreseeable.
 Smith v The London and South Western Railway Company (1870–71) LR 6 CP 14
 Facts: Workmen, employed by the defendant railway company to cut the grass and trim hedges
bordering the railway, placed the trimmings in heaps near the line, and allowed them to remain there
for fourteen days, during very hot weather in the month of August. Fire from a passing engine ignited
one of these heaps, and burned the hedge, and was carried by a high wind across a stubble field and a
public road, and burned the plaintiff’s goods in a cottage about 200 yards away. The question was
whether there was evidence of negligence to go before the jury. No one argued that the railway
company was strictly liable.
 Held: Bovill CJ said: ‘I agree that the mere circumstance of the fire being caused by an engine of the
company, is not enough to give a cause of action against them; but the plaintiff must show some
breach of duty on their part which occasioned the injury he complains of.’
 Glasgow Corp v Muir [1943] AC 448
 Facts: A group of children were having a day out with their Sunday school. They were meant to be
having a picnic, but the rain had ruined it. The leader of the trip asked the manager of a tearoom, run
by Glasgow Corporation, if she would allow the children to have their picnic on their premises. She
agreed and the group entered. In the tearoom there was a tuck shop, the window to which was
located midway along a corridor. The children had all started to line up along the corridor to buy
sweets at the tuck shop. At this time a large tea urn was being carried along the corridor by two adults,
to the main room of the tearoom. Somehow, and it is still unknown how, the tea urn overturned and
scalded a young girl (Muir). The parents of the girl sued Glasgow Corporation, claiming that they owed
the child a duty of care and that they had breached this.
 Held: The court held that the manageress in charge owed a duty of care, generally, to everyone in the
tearoom. However, she did not owe a duty of care to the Sunday school, to take additional precautions
to prevent their being injured as a result of her allowing them to enter. So long as the tearoom was run
in the same manner as it was day to day, and to the same safety standards, she was not required to
take extra steps to prevent the incident which occurred. It was not reasonably foreseeable that
allowing the children to come into the premises would result in one of them being scalded. As such,
the incident was put down as an accident which could not have been prevented.
 Foreseeability
 However, in The Wagon Mound (No 1) a large quantity of oil was spilt into Sydney Harbour from the
Wagon Mound and it drifted under the wharf where the claimants were oxyacetylene welding. The
resulting fire caused extensive damage to the wharf and to vessels moored nearby. The Privy Council
replaced the direct consequence test with the requirement that, in order to be recoverable, damage
must be foreseeable in all the circumstances, thus, although pollution was a foreseeable consequence
of the spillage, an outbreak of fire was not. Viscount Simonds:
 “A man must be considered to be responsible for the probable consequences of his act. To demand
more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance
of a minimum standard of behaviour. ”
 He went on to say , that a man should be responsible for the necessary or probable consequences of
his act (or any other similar description of them), "not because they are natural or necessary or
probable, but because, since they have this quality, it is judged by the standard of the reasonable man
that he ought to have foreseen them."
 In Hughes v Lord Advocate a child climbed down a manhole left uncovered and protected only by a
tent and paraffin lamp. When he came out he kicked over one of the lamps, which fell into the hole
and caused an explosion. The child was burned. Lord Reid said,
 “So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they
ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered
by the appellant, though perhaps different in degree, did not differ in kind from injuries that might
have resulted from an accident of a foreseeable nature. The ground on which this case has been
decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer
has to prove that the defender's fault caused the accident and there could be a case where the
intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than
the fault of the defender. But that is not this case. The cause of this accident was a known source of
danger, the lamp, but it behaved in an unpredictable way... ”
 The Wagon Mound (No 1) test is less generous to claimants than the direct consequence test because
it may impose an artificial limit on the extent of damages that can be claimed. To mitigate some of the
potential unfairness of the rule, the courts have been inclined to take a relatively liberal view of
whether damage is of a foreseeable type. In Lamb v. London Borough of Camden a water main
maintained by the Council broke, which caused extensive damage to the claimant's house. Because of
the damage, the claimant moved out and squatters (Someone who settles on land without right or
title) moved in, causing further damage to the house. The court held that the secondary damage
caused by the squatters was too remote. The council was liable for the damage caused by the broken
water main, but the land owner is responsible for keeping trespassers at bay. Lord Denning said that
remoteness of damages is just a question of policy with the element of foreseeability being determined
by what is perceived to be instinctively just. This means that the reasonable foreseeability test is not
always appropriate for cases where the acts of the claimant may demonstrate some fault.
Nevertheless, the courts can award damages based on foreseeability where public policy requires it,
e.g. in the egg-shell skull cases such as:
 Smith v Leech Brain & Co
 Facts: Plaintiff’s husband was a galvanizer. While operating a machine, a piece of molten metal struck
and burned his lower lip. He treated it and thought nothing of it, but the wound ended up getting
larger. He went to hospital, was notified that he had cancer. Despite treatment, he died of cancer.
 At trial: Found that the defendants were negligent, that there had been no contributory negligence
 Burn promoted the cancer in tissues which already had a pre-malignant condition as a result of the
employee’s exposure to tar and tar vapours
 Issue(s): Does liability from negligence extend to the unforeseeable results of the injury caused,
regardless of pre-existing condition?
 Is there a finding of causation when negligence results in an injury partly because of a pre-existing
condition?
 Ratio: Defendants are liable for damages when it is reasonably foreseeable that an injury would occur,
regardless of what results from the injury.
 It is the injury, not the damage that must be reasonably foreseeable.
 Analysis: Consider Wagon Mound No. 1:
 Assuming negligence proven, assuming the burn caused in whole or in part the cancer and death, the
plaintiff is entitled to recover. But, Wagon Mound did not have thin skull cases in mind. The tortfeasor
must take victim as he finds him
 The test is not whether the defendant could reasonably have foreseen that a burn would cause cancer
and that man would die
 The question is whether they could reasonably foresee the type of injury suffered (ie burn)
 The amount of damage suffered as a result of a burn depends on characteristics of victim
 Therefore, the defendants are liable for the damages to plaintiff.
 Holding: The burn was a foreseeable consequence of the defendant's negligence and this resulted in
the death. The defendant was liable for his death. It was not necessary to show that death by cancer
was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull
rule applies and the defendant must take his victim as he finds him.
 Although some courts have on occasion adopted a more restrictive approach, the decision of the Lords
in Jolley v Sutton London Borough Council, suggests that the liberal approach is to be preferred. The
council allowed an abandoned boat to remain on its land and, over a period of time, two boys began to
paint and repair it. Unfortunately, the boat fell on one of the boys, seriously injuring him. The
claimant's case was that the boat represented a trap or allurement (Attractiveness). The council
accepted that it had been negligent in not removing the boat but that it had not been foreseeable that
two boys would try to jack up the boat and so move it from the cradle upon which it lay. Lords Steyn
and Hoffman stated that it is not necessary to foresee the precise injury that occurred, but injury of a
given description. "The foreseeability is not as to the particulars but the genus. And the description is
formulated by reference to the nature of the risk that ought to have been foreseen." So, in Hughes it
was foreseeable that a child might be injured by falling in the hole or being burned by a lamp or by a
combination of both. Although the injuries were not actually sustained in a foreseeable way, the
injuries that actually materialized fell within the predictable range. Thus, the Wagon Mound No.2 and
Hughes are compatible. The former alleged that damage by burning was not damage of a description
that could reasonably have been foreseen, while the latter asserted that the injury was not reasonably
foreseeable. In both cases, the claimants could recover damages.
 Tremain v Pike [1969] 1 WLR 1556
 Facts: The farm labourer contracted leptospirosis (An infectious disease cause by leptospira and
transmitted to humans from domestic animals; characterized by jaundice and fever) from handling
materials on which rats had urinated.
 Held: The defendant was not liable. It was not known at the time that leptospirosis could be
transmitted in this way. Whilst it was foreseeable he may contract the disease by a rat bite the way he
contracted the disease was not foreseeable.
 Bourhill v Young [1943] AC 92, 108
 Facts: The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket
off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a
car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The
claimant heard the collusion but did not see it. A short time later, the claimant walked past where the
incident occurred. The body had been removed but there was a lot of blood on the road. The claimant
went into shock and her baby was still born. She brought a negligence claim against the defendant's
estate.
 Held: No duty of care was owed by the defendant to the claimant. There was not sufficient proximity
between the claimant and defendant when the incident occurred.
 Different tests for remoteness
 Similar-in-type rule
 An injury is not too remote if the type of injury is reasonably foreseeable, even if the precise way in
which the injury was caused was not foreseeable.
 HUGHES V LORD ADVOCATE [1963] 1 ALL ER 705
 FACTS: The defendant, left a manhole covered by a small tent with a paraffin lamp at each corner,
unattended. The plaintiff, one of two boys aged 8 and 10, took a lamp inside the tent, he tripped,
causing the lamp to fall into the manhole and this created a large explosion. The plaintiff suffered
serious burns.
 ISSUE: Was the injury too remote?
 HELD: The House of Lords found that the defendant was liable because the accident was caused by a
known source of danger; therefore, injury by burning was foreseeable, even though the way in which it
happened was unexpected.

 Lord Morris : there was a duty owed by the defenders to safeguard the pursuer against the type or
kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not
absolved from liability because they did not envisage the precise concatenation of circumstances which
led up to the accident....
 The House of Lords have taken a narrow view in interpreting the meaning of similar type.
 JOLLEY V SUTTON [2000] 3 ALL ER 409
 FACTS: The claimant, a child, was severely injured when playing on a boat which had been abandoned
on the defendant's land
 ISSUE: Was the injury too remote?
 HELD: The House of Lords took a wide view of the type of injury. It was foreseeable that injuries such
as bruises or even fractures may be sustained but the claimant suffered severe crushing injuries which
left him disabled. Using The Wagon Mound test and following the approach in Hughes v Lord Advocate
[1963], the court found that it was not necessary to distinguish between the different types of physical
injuries, because the precise nature of the injury does not need to be foreseeable.
 Egg-shell skull rule
 The egg-shell skull rule applies in cases where the type of injury is foreseeable but the claimant's
special characteristics make the extent of the injury unforeseeable. The rule is also referred to as take
your victim as you find him.
 SMITH V LEECH BRAIN & CO [1962] 2 QB 405
 FACTS: The victim suffered a burn on his face after being slightly splashed by molten metal when
working for the defendant. The incident would not have happened but for the defendant's negligence.
The burn aggravated the victim's unknown pre-existing cancerous condition and he died.
 ISSUE: Was the victim's death too remote?
 HELD: The court found that the defendant was liable because although the cancer was an
unforeseeable injury the defendant's negligent act led to the cancer developing. The court explicitly
followed The Wagon Mound test: the burn injury was foreseeable and the fact that the extent of the
injury was not, did not prevent liability.
 Lord Parker: If a man is negligently run over... it is no answer to the sufferer's claim for damages that
he would have suffered less injury... if he had not had an unusually thin skull or an unusually weak
heart....
 ROBINSON V POST OFFICE [1974] 1 WLR 1176
 FACTS: The plaintiff slipped at work, due to the defendant's negligence, and suffered a minor injury to
his leg. The plaintiff went to hospital and was given an anti-tetanus injection and then he suffered a
severe allergic reaction to the injection.
 ISSUE: Was the second injury too remote?
 HELD: The defendant was liable for both injuries. It was reasonably foreseeable that the plaintiff would
require medical treatment as a result of the original injury and therefore, the defendant was liable for
the consequences of the treatment, despite the reaction being unforeseeably severe.

 Claimant's impecuniosity
 Another element of taking your victim as you find him, relates to the extent that a claimant's lack of
resources may mean that he is unable to ameliorate the loss suffered due to the defendant's
negligence.
 LAGDEN V O'CONNOR [2004] 1 ALL ER 277
 FACTS: The claimant's car was damaged when the defendant negligently crashed into the parked
vehicle. The claimant's car required extensive work and he needed a temporary replacement. The
claimant was only able to obtain a hire car on an expensive credit arrangement.
 ISSUE: Was the credit agreement payment too remote?
 HELD: The defendant was liable for the cost of credit because the claimant had to take out the
expensive agreement as a result of the damage caused by the defendant's negligence. Essentially, the
court applied the principle that a defendant must take his victim as he finds him.
 A SINGLE ACTION AND THE LUMP SUM
 Single Action
 A claimant can bring only one action in respect of a single wrong. He cannot maintain a second action
based on the same facts merely because the damage turns out to be more extensive than was
anticipated (Fetter v Beale (1701) 1 Ld Raym 339, 692). However, there are some exceptions to this.
 Where a single wrongful action violates two distinct rights the claimant can bring separate actions in
respect of each right. Although the rule in Henderson v Henderson (1843) 3 Hare 100 requires the
parties to bring the whole case before the court so that all aspects of the case may be finally decided
(subject to any appeal) once and for all, in Talbot v Berkshire CC [1994] QB 290 the Court of Appeal
gave three examples of special circumstances where the rule would not apply:
- (a) where the claimant was unaware of the existence of the claim;
- (b) where an agreement was made between the parties holding the action in abeyance; and
- (c) where the claimant had not brought his case earlier in reliance on a representation made by the
defendant
 A second exception to the rule is where there is a continuing injury, such as a continuing nuisance or
trespass to land. In trespass, being actionable per se, a fresh cause of action arises from day to day,
and in nuisance a fresh cause of action arises whenever further damage occurs (Darley Main Colliery v
Mitchell (1886) 11 App Cas 127).
 The final exception is that where a single wrong produces successive and distinct damage, then in torts
which are actionable only on proof of damage (as opposed to torts actionable per se), a separate and
distinct cause of action will accrue (Mount Albert BC v Johnson [1979] 2 NZLR 234).
 Lump sum
 Damages are assessed once and for all must be awarded in the form of a lump sum. This applies both
to accrued and prospective losses. The court has no power to require the defendant to make periodical
payments (Burke v Tower Hamlets Health Authority [1989] Times Law Reports August 10).
 An exception of very limited application was accepted in Mullholand v Mitchell [1971] AC 666. Where
there is evidence of a change of circumstances after the trial but before an appeal, the Court of Appeal

will admit the new evidence. New evidence was also admitted by the House of Lords in Lim Poh Choo v
Camden AHA [1980] AC 174 to 'mitigate the injustices of a lump sum system'.
 The lump-sum principle, combined with the rule that damages can be recovered once only, causes
serious difficulties in actions for personal injuries, particularly where the medical prognosis is
uncertain. There is now a procedure for the award of provisional damages in this type of case (CPR,
Part 41). Section 32A of the Supreme Court Act 1981 provides that in personal injury cases where there
is a 'chance' that, as a result of the tort, the claimant will develop some serious disease or suffer some
serious deterioration in his condition, he may be awarded provisional damages assessed on the basis
that the disease or deterioration will not occur. If the event subsequently materialises the claimant can
then make an application for further damages, which will more accurately compensate his loss. There
can only be one such application in respect of a disease or type of injury specified in the original action.
 A claim for provisional damages cannot include a declaration that the claimant's surviving dependants
should be entitled to bring a claim under the Fatal Accidents Act 1976 if the claimant should
subsequently die as a result of a deterioration of his physical condition. The Damages Act 1996, s3 now
permits dependants to claim in respect of losses not compensated by the initial award of damages.
 An alternative to provisional damages which is currently available, but little used, is a procedure for
separate trials on liability and damages, so that the assessment can be made at a later date when the
claimant's medical prognosis is more certain (CPR, Part 3, r3.1(2)(i)). However, this will only be of value
where the claimant's medical condition is unstable and needs time to settle.
 Structured settlements
 A recent development has been the introduction into this country of the North American concept of a
'structured settlement' (for a definition see the Damages Act 1996, s5). This is a private arrangement
between the claimant and the defendant's liability insurer whereby the normal lump-sum payment for
future losses is taken in the form of periodic payments. These payments can be varied or 'structured'
over a period of time. They can be for a fixed period or until the claimant's death, and they can be
index-linked. The payments are financed by the purchase of an annuity by the liability insurer with the
money that would have been paid to the claimant as a lump sum. This annuity is held by the insurer on
behalf of the claimant, and, as a result of a concession by the Inland Revenue, the payment is not
taxable as income in the claimant's hands. They depend upon agreement between the claimant and
the defendant's insurers; the court has no power to order such an arrangement without the consent of
the parties (Damages Act 1996, s2).
 Periodic payments made under a structured settlement damages award come within the category of
capital treated as income for the purposes of the Income Support (General) Regulations 1987 and will
affect a claimant's entitlement to income support (Beattie v Secretary of State for Social Security, 9
April 2001, CA).
 PERSONAL INJURIES
 In most actions for personal injuries the claimant suffers two distinct types of loss - pecuniary and non-
pecuniary loss. Pecuniary loss is the damage that is capable of being directly calculated in money
terms. The commonest example is loss of earnings, both actual and future, but it includes all other

expenses attributable to the tort, such as medical expenses, travelling expenses, the cost of special
equipment or of employing someone to carry out domestic duties which the claimant is no longer able
to perform, or loss of pension rights. Non pecuniary losses are such immeasurable matters as pain and
suffering caused by the injury, and loss of amenity attributable to a disability.
 The courts assess damages under several 'heads', but for the purpose of calculating interest there are
three broad heads: accrued pecuniary damages; non-pecuniary damages; and loss of future earnings.
The House of Lords has stressed, however, that the court should also have regard to the
appropriateness of the total award to avoid overlapping of different heads of damages.
 Medical and other expenses
 The claimant is entitled to recover his medical and other similar expenses reasonably incurred. Accrued
expenses will be awarded as part of the special damages, whereas future medical expenses will be
estimated and awarded as general damages.
 The Law Reform (Personal Injuries) Act 1948, s2(4), provides that the possibility of avoiding medical
expenses or part of them by taking advantage of NHS facilities is to be disregarded.
 Section 5 of the Administration of Justice Act 1982 provides that any saving to the injured person
which is attributable to his maintenance wholly or partly at public expense in a hospital, or nursing
home or other institution shall be set off against any income lost by him as a result of his injuries. A
similar proposition had been expressed in Lim Poh Choo which effectively applies the same rule to
claimants who make savings in domestic expenditure while being looked after in a private institution.
 If the claimant has to live in a special institution, such as a nursing home, or receive attendance at
home he is entitled to the cost of that, provided that it is reasonably necessary (Shearman v Folland
[1950] 2 KB 43).
 It often happens that a third person, such as a relative or friend, bears part of the cost of the claimant's
injury, either in the form of direct financial payments or by providing nursing assistants. Sometimes a
spouse or close relative may give up paid employment in order to care for the claimant. The claimant
can recover the cost of such care:
 Until recently, the basis for such recovery was the Court of Appeal's decision in Donnelly v Joyce [1974]
QB 454 where it was held that the existence of a legal or moral obligation to reimburse the third party
was irrelevant. It was incorrect, said the court, to think of this are someone else's loss. It was the
claimant's loss. His loss was the existence of the need for nursing services or special equipment, not
the expenditure of the money itself. So far as the defendant was concerned, the question from what
source the claimant's needs had been met, who had paid the money or given the services, or whether
the claimant was under a legal or moral obligation to repay, were all irrelevant.
 While retaining the general rule that the claimant can recover for the gratuitous provision of care by
third party and preserving the principles as to quantum, the House of Lords in Hunt v Seers have
altered the basis upon which such an award is made, reverting to the approach suggested by Lord
Denning MR in Cunningham v Harrison [1973] QB 942, that the award reflects the claimant's obligation
to hold that portion of the damages in trust, to be paid to the person supplying the services. One
consequence of shifting the focus from the claimant to the third party is that, as in Hunt v Seers itself,
an award could not be made where the services are provided by the defendant tortfeasor.
 LOSS OF EARNINGS
 Actual loss
 It is not usually difficult to calculate the claimant's actual loss of earnings from the date of the injury to
the date of assessment. This is the net loss, after deducting income tax and social security
contributions (British Transport Commission v Gourley [1956] AC 185). An employee's contributions to
a pension scheme are also deducted in calculating his actual loss of earnings.
 Prospective loss
 The calculation of future loss of earnings, however presents real problems, largely because the court
has to engage in the exercise of prophesying both what will happen to the claimant in the future and
what would have happened if he had not been injured, in order to estimate the difference.
 The starting-point in this process is to work out the claimant's net annual loss of earnings (as that the
date of assessment, not the date of the injury: Cookson v Knowles [1979] AC 556). The net annual loss
is known as the 'multiplicand', and will be adjusted to take account of the claimant's individual
prospects of promotion (Roach v Yates [1938] 1 KB 256), but no allowance is made for real increases in
average earnings generally.
 This sum is then multiplied by another figure, called the 'muliplier', which is based initially on the
number of years that the loss is likely to continue. The multiplier is then reduced, or 'discounted' to
take account of: (a) the uncertainty of the prediction - the claimant might have lost his job in any event
at some point in the future e.g., through redundancy or illness; and (b) the fact that the claimant
receives the money now as a capital sum, instead of in instalments over the rest of his working life.
 The maximum multiplier that used to be applied by the courts was 18, but it was rarely that high. In the
past the multiplier used rested on the assumption that a person who invested a capital sum would
receive a return of approximately 4.5% after the effects of tax and inflation had been taken into
account (Pearson Commission, 1978). This traditional approach to calculating the multiplier was
challenged in three consolidated appeals in the House of Lords. The House of Lords held that the
plaintiffs were entitled to be compensated on the assumption that they would invest in index-linked
government securities (ILGS), a view which had been recommended by the Law Commission in 1994.
The average return on ILGS in recent years has been approximately 3%, significantly lower than the
assumed return of 4.5% upon which the traditional approach was based (because investment in
equities carries a premium for the risk involved). Their Lordships indicated, as a matter of guidance
rather than precedent, that the appropriate discount rate should be 3% (different economic
circumstances might justify a change to the guide figure in the future). This would require a larger
initial lump sum, which is reflected in a higher multiplier. The consequence of this change is that for
seriously injured claimant’s awards of damages will increase significantly.
 The Damages Act 1996, s1, permits the Lord Chancellor to give general guidance on rates of return,
though leaving discretion to the courts to apply different rates where appropriate. The Lord Chancellor
issued a consultation paper on this question in March 2000, but in the meantime the course are
applying the 3% discount rate (Warren v Northern General Hospital [2000] 1 WLR 1404, CA).

 The lost years
 If the claimant's life expectancy has been reduced by his injuries, can he claim for the earnings that he
would have received in the period between his expected date of death and the date that he would
have stopped working but for the accident? In Oliver v Ashman [1962] 2 QB 210 the Court of Appeal
held that the losses incurred in these 'lost years' were not recoverable, on the basis that a claimant
cannot suffer a loss during a period when he will be dead. This rule effectively penalised the claimant's
dependants, since their dependency in the 'lost years' would have been met from the claimant's
earnings during that period. This consideration led the House of Lords to overrule Oliver in Pickett v
British Rail [1980] AC 136. Damages for prospective loss of earnings are now awarded for the whole of
the claimant's pre-accident life expectancy, subject to a deduction for the money that the claimant
would have spent on his own (not his dependents') living expenses during the last years.
 Deductions
 A person suffers personal injury may receive financial support from a number of sources other than
tort damages. The most common source is social security but others include, for example, sick pay,
pensions, and private insurance and charitable donations.
 (a) Social security benefits
 The Social Security Act 1989 introduced a scheme of 'recoupment' of prescribed social security benefits
from tortfeasor’s/insurers by the state for accidents or injury occurring on or after 1 January 1989. This
system has been further amended by the Social Security (Recovery of Benefits) Act 1997, which applies
retrospectively to all settlements made or judgments given on or after 6 October 1997. Benefits are no
longer 'recouped'; they are 'recovered' from the compensator. Any 'recoverable benefits' paid to the
victim of an accident, injury or disease in the ‘relevant period’ is recoverable from the compensator.
 (b) Other collateral benefits
 The proceeds of a personal accident insurance policy taken out by the claimant are ignored, on the
basis that otherwise the claimant's foresight and thrift would benefit the defendant (by reducing the
damages payable) instead of himself (Bradburn v Great Western Railway (1874) LR 10 Ex 1).
 Gratuitous payments to the claimant from charitable motives are not deducted, again on the
assumption that the donor intended to benefit the claimant rather than the defendant (Redpath v
Belfast Railway [1947] NI 167).
 The House of Lords held in Parry v Cleaver [1970] AC 1 that an occupational disability pension should
not be deducted from lost earnings, whether the pension was contributory or non-contributory. The
majority took the view that the nature of a pension makes it analogous to private insurance effected
by the claimant and so within the general principle of Bradbury v Great Western Railway.
 Occupational sick pay will be deducted if paid as a term of the claimant's contract of employment
(unless there is a contractual obligation to repay the employer on receipt of tort damages: Browning v
War Office [1963] 1 QB 750).
 If the claimant is made redundant as a result of his injuries, in the sense that his disability makes him a
more likely candidate for redundancy, then any redundancy payment received will be deducted.

 A compensation payment from a statutory compensation scheme for workers who developed an
industrial disease (pneumoconiosis) is deductible from damages awarded in respect of the same illness
(Ballantine v Newalls Insulation [2000] Times Law Reports June 22).
 Loss of earning capacity
 Where a person suffers a permanent disability which affects his ability to earn in the future at the
same rate as he earned before his injury, then he may or may not suffer loss of earnings. His loss of
earnings may be total if he is unable to work at all, or partial, if he is able to take a less remunerative
job. But in some cases, although his injuries have affected his ability to earn, the claimant suffers no
loss of earnings because his employer continues to employ him at the same rate of pay. In these
circumstances the claimant is entitled to damages for his loss of capacity, if there is a real risk that he
could lose his existing employment, because his capacity to find an equivalent job has been reduced
(Smith v Manchester Corp (1974) 17 KIR 1. This involves a two-stage test: (1) was there a substantial or
real risk that the claimant would lose his present job at some time before the end of his working life?
and (2) if so, what is the present value of future risk?
 There is no real distinction between damages for loss of earning capacity and damages for future loss
of earnings.
 PAIN AND SUFFERING
 The claimant is entitled to damages for actual and prospective pain and suffering caused by the injury,
by a neurosis resulting from the injury, or attributable to any necessary medical treatment. A person
who suffers mental anguish because he knows that his life expectancy has been reduced can recover
that anguish (Administration of Justice Act 1982, s1(1)(b), restating the common law position).
 Similarly, a person who has been incapacitated and is capable of appreciating his condition will be
compensated for the anguish that this creates (West & Son Ltd v Shepherd [1964] AC 326).
 LOSS OF FACULTY AND AMENITY
 The injury itself represents loss of faculty whereas the consequences of the injury on the claimant's
activities represents a loss of amenity, e.g., loss of job satisfaction, or loss of leisure activities and
hobbies, and loss of family life. It is rarely necessary to distinguish between these heads because the
courts usually award a single global sum to cover all the claimant's non-pecuniary losses.
 The Law Commission's Report on Damages for Personal Injury: Non-Pecuniary Loss (No 257, 1999)
suggested that awards for non-pecuniary loss were too low, at least in serious cases and are low in
comparison with awards made in defamation cases. In Heil v Rankin [2000] 2 WLR 1173 specially
constituted five-judge Court of Appeal accepted the thrust of the Law Commission's proposals, while
not accepting that there should be an 'across the board' increased in awards for non-pecuniary loss.
The Court considered that there should be a tapered increase in awards, with an increase of about a
third for the most serious injuries, but no increase at all for awards which were assessed at under
£10,000. The bracket for the most serious injuries should start at £150,000 rising to £200,000 for the
very worst cases. These figures will, in future, increase in line with the retail prices index, although the
Court accepted that parts of the argument for the tapered increase that they applied was that, over
time, the retail prices index does not fully reflect the general increase in prosperity. The public might

reasonably expect that such awards bear some relationship to levels of income and wealth in society,
particularly since assessing the level of damages was essentially a 'jury function'.
 INTEREST ON DAMAGES
 The court has discretion to award simple interest on all or any part of the damages, and in the case of
damages for personal injuries or death exceeding £200 the court must award interest unless there are
special reasons for not doing so (Supreme Court Act 1981, s35A). Where the claimant has delayed
bringing a claim to trial the court has discretion to disallow all part of the claim for pre-trial interest.
 Interest on damages for non-pecuniary loss is awarded at a modest rate, currently 2%, from the date of
service of the claim form to the date of trial. The reason for this low rate is that a large proportion of
nominal interest rates is represented by inflation, and inflation is taken into account when the courts
assesses damages for non-pecuniary loss by the general up-rating of 'tariffs' (Wright v British Railways
Board [1983] 2 AC 773). Note that this rate may now be increased to 3% in the light of the decision of
the House of Lords.
 DISCRETIONARY DAMAGES
 The court has discretion to award damages in addition to or in substitution for an injunction (Supreme
Court Act 1981, s50).
 Damages are monetary awards. In in a legal sense, “damages” refers to monetary compensation that is
claimed by a person or awarded by a court in a civil action to a person who has been injured or
suffered loss because of the wrongful conduct of another party. The Supreme Court of Canada has
held: “Damages are a monetary payment awarded for the invasion of a right at common law”. (Canson
Enterprises Ltd. v. Boughton & Co. [1991] 3 S.C.R. 534 at para. 39, per La Forest J.)
 The purpose of damages is, in a tort action, to restore an injured party to the position he was in before
being harmed, and, in a contract action, to place the innocent party in the position he would have been
in had the contract been performed. Consequently, damages are generally remedial rather than
preventive or punitive.
 Depending on the nature of the loss or injuries, you may have several different remedies available to
you, including damages. You will want to consider these various remedies when discussing with your
lawyer your legal options. See Some Things You Should Consider before Deciding Whether To Sue and
A Client’s Step-by-Step Guide to Commencing a Civil Action.
 The law of damages is a comprehensive subject about which several texts have been written. Briefly,
definitions of various main types of damages are provided below.
 Compensatory Damages (also called “Actual Damages”)
 Damages awarded for actual loss, to place the plaintiff in a position that she would have been in had
she not suffered the wrong complained of. The aim is to “make the injured party whole again”.
 Speaking about a tort action, the Supreme Court of Canada has stated: “The general principles
underlying our system of damages suggest that a plaintiff should receive full and fair compensation,
calculated to place him or her in the same position as he or she would have been in had the tort not
been committed, insofar as this can be achieved by a monetary award. This principle suggests that in
calculating damages under the pecuniary heads, the measure of the damages should be the plaintiff’s

actual loss.” Ratych v. Bloomer, [1990] 1 S.C.R. 940 at para. 71, per McLachlin J.; see also Livingstone v.
Raywards Coal Co., [1911] A.C. 301 at 307 (P.C.).
 In a breach of contract case, the court might well order the breaching party to compensate the non-
breaching party for losses resulting from the breach. A defendant is liable to a plaintiff for all the
natural and direct consequences of the defendant’s wrongful act. Remote consequences of a
defendant’s act or omission cannot form the basis for an award of compensatory damages.
 In a breach of contract, the measure of damages is the amount of money that would put the plaintiff in
the position he would be in had the contract been performed. Wertheim v. Chicoutimi Pulp Co., [1911]
A.C. 301 at 307 (P.C.); Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303;
Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para. 45.
 The difference between the tort and contract tests is important. In a tort action, the court determines
what losses the plaintiff would have avoided has the incident not happened. In a contract action, the
court considers the benefits the plaintiff would have gained had the contract been completed. To
illustrate, in a personal injury action (tort), the court tries to compensate the plaintiff for injuries and
losses. In a sale of goods action (contract), the court awards the plaintiff the profit he would have
earned had the transaction been carried out.
 The two types of compensatory damages for pecuniary loss are:
 Expectation Damages: in a breach of contract case, for instance, damages intended to cover what the
injured party expected to receive from the contract. Calculations are usually straightforward as they
are based on the contract itself or market values.
 Consequential Damages: may be awarded when the loss suffered by a plaintiff is not caused directly or
immediately by the wrongful conduct of a defendant, but results from the defendant’s action instead.
Two examples follow.
 In a breach of contract case, for instance, consequential damages are intended to reimburse the
aggrieved party for indirect damages besides the contractual loss; for example, loss of business profits
resulting from undelivered goods. They must “flow from the breach”, and be reasonably foreseeable
upon entering into the contract.
 In a tort case, for instance, if at the local gym a defendant drops a barbell on the foot of a plaintiff who
is a construction worker, the plaintiff could recover consequential damages for the loss of income
resulting from the injury. These consequential damages are based on the resulting harm to the
plaintiff’s personal income. They are not based on the injury itself, which was the direct result of the
defendant’s conduct.
 Are the Remedies for a Breach Adequate
 With regards to the overall objectives of the law of tort, do you believe that the remedies available
from the courts are adequate?
 A tort is best defined as ‘harm or a wrong’. Tortuous liability arises from the breach of a duty primarily
fixed by law: this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.

 The Law of Tort is best described as the law of non-criminal wrongs; Tort Law covers many areas which
such as the torts of negligence, torts of nuisance, trespass to land, libel, slander battery and assault. In
the tort of law the person that commits a wrong is known as the tortfeasor, and the other party is
recognized as the wronged or innocent party.
 Tort law protects the interests of someone who has suffered an unwanted harm, the harm suffered
may involve physical injury, psychiatric injury, damage to property, financial loss, and in some cases
the death of a person caused by some ones negligence may even be a reason for an action in tort law
to arise. However, in some cases no damage or harm appear to have occurred at all, this indicates the
tort law is not just, concerned mainly with harm but it is concerned with right just as much. The rights
that exist are rights to bodily freedom and autonomy, rights to or interests in property, and other right
such as the right to reputation and the right to privacy.
 The main remedy against tortious loss is compensation in 'damages' or money.
 Most actions in tort are for damages. The damages aim to redress the harm caused by the tortfeasor
by awarding monetary compensation to the wronged party in order to restore them to the position
had the tort not been committed.
 The aim of tort law is generally seen as one of corrective justice in the sense that any loss or damage to
the claimant as a result of fault by the tortfeasor should be compensated by the tortfeasor. This is seen
as a fair approach, as the person that has committed the wrongful act is held liable for their actions.
The problems emerge when a fault is being established, the situations in which compensation applies,
whether or not it is reasonable to apply it in the first instance and also how to compensate for the
harm or damage caused.
 Another aim of Tort law is to distribute the responsibility and loss in a wider field rather than confining
it to a single person, and in doing so possibly creating a fairer system of compensation.
 Vicarious liability- the employer is responsible for torts committed by employees is an example of the
distribution of loss. Insurance schemes for motor insurance are also another form of loss distribution.
In the case of Nettleship v Weston, the claimant N was held not to have voluntarily contributed to the
harm done because he was aware of the issue of insurance.
 The learner driver was also held liable because she owed a duty of care same as any experienced
driver so she could not argue that she was trying her “incompetent best”.
 In this case, Lord Denning also held that morally, the learner drive is not at fault but legally, she is held
liable because she had insurance and it is therefore fair that the burden should fall on her. This case
demonstrates one of the different aims of tort law. C. Harlow has described tort as having various
disparate aims. Under the heading of loss spreading, the principal function of tort is ‘social insurance’
”. The above case establishes that the courts seek to place liability on big companies or persons who
are better able to afford the costs. This can be linked with the idea of the one with the deeper pockets
should be liable. Although this somewhat seems to be a reasonable and fair way of distributing loss. It
is argued that this undermines the deterrent aim of Tort law in the sense that if the law of Tort can
deter or put a fear of legal liability on a driver, which will lead to the driver being more careful, or
similar ideas may go up the scale of carelessness; to a factory owner who has had to pay once, may be
more likely to instill more carefully regulated working practices on his employees, Thereby preventing
further injuries occurring. The case of Nettleship v Weston illustrates that this may not always work as
the ‘social insurance’ is relied upon.
 The deterrent aim of law is based on fear of legal liability and the awards of damages are adequate as
they are seen to provide an incentive for both injurers and potential victims, to indulge in safer
conduct, both by avoiding hazardous activities and by increasing the level of safety precautions they
provide in order to meet the demands of economic efficiency.
 Also, with regards to deterring people from committing torts in the first place, potentially leads to the
development and maintenance of good standards of practice amongst professionals so that future
tortuous actions are avoided. The imposition of strict liability for breaches of statutory duties on
employers and on the manufacturers of defective products encourages the maintenance of the high
standards of safety in order to avoid liability.
 However in contrast of this view, Considering the deterrent aim of tort law, the fact that most torts
committed are accidents, especially when negligence is involved, puts a question mark on whether
the remedy of compensatory damages is adequate in this sense. If a tort has been committed based on
an accident or negligence, one of the way it could be viewed is that it is unfair to say that making the
defendant pay compensatory damages will deter the defendant or another potential defendant from
committing another ‘accident’ in the future.
 To follow on from the view above, this could be proven as the deterrent effect of tort law may be
varied and is often limited, as a large majority of tort law cases are abandoned or settled out of court
for relatively small sums. In some cases there is no intention of deliberate harm despite supporting
evidence being controversial, a common problem occurring is that medical negligence litigation has led
to the practice of defensive medicine.
 It must be pointed out that it is not always the case that tort actions are concerned with recovering
damages in the form of compensation. On occasion it is used whereby an individual may seek redress
for injured feelings or reputation such as in the claims for defamation, malicious prosecution and false
imprisonment an action may be brought in order to prove that the defendant acted wrongfully and
thus to vindicate the plaintiff and not for the purpose of obtaining compensation.
 The courts have little patience for minor claims have taken a cautious approach when awarding
damages against non-material harms; this may be due to the difficulties in making a precise calculation
of damages in many torts such as finding the damages for false imprisonment.
 The general principle of protecting certain rights and interests of individuals is widely agreed upon, It
is also seen as acceptable to compensate a claimant at the expense of the tortfeasor if or when a
financial loss has occurred.
 The system as it is now uses a combination of damages either by making the tortfeasor directly
responsible or through a system of insurance. It could be argued that in recent times the success of a
tort action is mainly judged on the amount of compensation awarded and this leads to the suggestion
that some of the original concepts, principals and aims of tort law have been redirected to purely
monetary gain, rather than to compensate for the original harm and even less so to educate the
wrongdoer especially when it comes to negligence and personal injury claims.

 With regards to the overall objectives of the law of tort, the remedies available to the claimants are
possibly seen as adequate to the wronged party however it could be said that with regards to the
tortfeasor, the damages payable will not necessarily affect him like the aims of tort law such as
deterrence will be expected to do.
 Restituto in integrum is one of the primary guiding principles when it comes to awarding damages in
the cases of negligence, the Latin term as defined by Lord Blackburn means compensation should be
"that sum of money which will put the party who has been injured in the same position as he would
have been if he had not sustained the wrong for which he is now getting his compensation or
reparation.”. With regards to the death of a loved one caused by the fault of someone is dealt with by
the Fatal Accident Act 1976. In terms of claiming for bereavement itself the Act provides for damages
of £10,000 to be paid. This could be said to undermine the ‘Restituto in integrum’ principle as it sets
out to put the party who was been injured in the same position as he would have been if he had not
sustained the wrong. However this award of damages for a loved one is seen as inadequate with
regards to the aims of Tort law.
 Conclusion
 In conclusion it could be said that with regards to the overall aims of tort law, the remedies available
are utilized in the wronged parties favor as much as possible and are therefore seen as adequate.
However the remedies of compensatory damage with regards to deterring a tortfeasor from
committing a tort could possibly be seen as inadequate to the fact that deterring someone from having
an accident in the first place is hard, let alone making sure a person has fear of legal liability when the
loss is not coming out of their pocket instead the person relies on an insurance company to deal with
the large payout of damages.
 Class activity
 Discussion – Why do we need remedies? What makes a good remedy?
 Teacher-led information on the range of common law remedies.
 Summary activity – learners read the article in the website opposite and make a presentation to
illustrate its key points.
 Research activity – learners match relevant cases to types of damages such as nominal, contemptuous,
exemplary and aggravated.
 Teacher-led information on the application of compensatory damages in personal injury cases.
 Learners make a flow chart to show the steps which must be followed in order to achieve a remedy.
 Discussion – To what extent is it true to say that the rules relating to remedies are necessary but
restrict justice?
 Learners construct a set of facts giving rise to liability in tort. Apply each of the different types of
damages and explain the results to which the type would give rise – use figures to support their
reasoning.
 Learners make a presentation of their findings to the rest of the group and see if they agree with the
conclusions.

 Class activity – learners construct liability in tort, develop a plea in mitigation and let the group be the
judge – a key aspect of this is the type and amount of damages to be awarded.
 Questions from past papers
 Q1. ‘Traditionally, anyone who was partly responsible for the harm done to them could not recover in
tort, but today, damages can be reduced taking account of fault on behalf of the claimant.’ Trace the
statutory and case law developments that helped to bring about this change in approach to awards of
damages in negligence cases and critically analyse the standard of care issues that may arise as a
result. [October/November 2006]
 Q2. The courts use different approaches when assessing pecuniary and non-pecuniary losses suffered
by claimants in tort. Discuss these various approaches. [May/June 2007]
 Q3. ‘The system of awarding damages in tort does not provide universal justice to claimants.’ Critically
evaluate the truth of this statement. [May/June 2008]
 Q4. The usual reason for awards of damages in tort is to compensate victims. Using case law to support
your answer, analyse the circumstances in which non-compensatory awards might be made instead.
[May/June 2009]
 Q5. Pecuniary and non-pecuniary losses are treated differently in tort. Discuss the approaches of
courts in assessing compensation claims in tort and explain why they are considered necessary.
[October/November 2012]
 Q6. A principal aim of an award of damages in tort is to compensate a victim in full (restitutio in
integrum). Assess the extent to which the courts have been able to achieve this aim.
[October/November 2013]
 Q7. Victims of tort would ordinarily be compensated by an award of damages. Using decided cases to
illustrate your response analyse when a court might make a non-compensatory award of damages
instead. [May/June 2014]
 Q8. Examine the development and application of the remoteness of damage principle through case
law. Discuss the extent to which you agree with this statement. [October/November 2014]

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Lecture # 12

Common Law Remedies

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