#10374 - Remedies In Tort - BPC Civil Litigation

REMEDIES IN TORT

FACTORS TO BEAR IN MIND WHEN DECIDING ON A REMEDY

• ADR?

• cost / benefit - if loss minimal, will cost outweigh benefit?

• can D pay damages if awarded?

• does C need immediate remedy: interim injunction / interim payment

LIABILITY

Elements of tort

Causation

• factual causation

  • general rule: but for test

• legal causation

  • NAI, the more foreseeable, the less likely to break the chain

  • sometimes considered part of remoteness - D only liable up to point chain breaks

Remoteness

• non-intentional torts

  • the Wagon Mound

    • foreseeability (slight likelihood) of the particular kind of damage

    • if kind of damage foreseeable, full extent recoverable

  • scope of duty - SAAMCO defence

    • even if damage is foreseeable, NOT recoverable if outside scope of DOC owed to C

    • sometimes seen as part of principle of DOC

• intentional torts

  • directness: tortfeasor liable for all consequences of tort, even though NOT reasonably foreseeable

  • applies to:

    • deceit ref: misrep

    • trespass

    • harassment

Egg shell rules

• egg shell skull

  • D takes V as finds them

• egg shell bank balance

  • if C's loss exacerbated by his impecuniosity (+ inability to mitigate), still recoverable (provided reasonably foreseeable)

PROOF OF LOSS + DAMAGE

• C must prove:

  • fact of loss

  • NOT extent of loss (court will assess, difficulty of assessment no bar to recovery)

• trespass to land: C does NOT need to prove loss

QUANTUM OF COMPENSATORY DAMAGES

Nature of damages

• = compensatory - put C in position would have been in had the tort NOT occurred

Time of assessment

• when damage occurred (usually accrual)

• BUT court has discretion AND likely to exercise in:

  • PI + death - date of trial

  • repair to property - date reasonable for C to make repairs

Types of loss recoverable and mode of assessment

1. PI AND economic loss consequent on PI ref: PI

2. property damage AND loss consequent on property damage

   • cost of repair / replacement OR diminution in value (goods irreplaceable / uneconomic to repair e.g. car write off) - common sense, same principles as contract

   • profit earning property:

     • cost of cure + loss of profit; OR

     • diminution in value (includes profit earning potential)

   • negligent over-valuation of purchased property: diminution in value

3. interference with property AND loss consequent

   • permanently deprived: cost of repair / replacement OR diminution in value

   • temporarily deprived: loss of use

   • loss of amenity

4. interference with land AND loss consequent

   • trespass to land

     • DON'T need proof of loss (actionable per se)

     • financial loss arising from loss of use OR fair rent value OR fair easement value

   • nuisance

     • = tort against land itself (NOT person)

     • losses must be referable to effect on land itself

     • heads of loss:

       • physical damage to land itself

       • loss consequent on physical damage to land

       • loss of amenity (diminution of amenity value of land):

         • temporary / permanent devaluation of land; OR

         • SPD (NO diminution in value of land)

     • remedies

       • damages

       • injunction OR damages in lieu

5. other kinds of personal non-financial damage

   1. loss of liberty

   2. mental distress

   • that amounts to suffering = PI

   • falling short of suffering = prima facie NOT recoverable, tacked on to intentional torts

   3. reputation - usually from defamation

   4. inconvenience + discomfort - separate head if NO overlap with loss of amenity; usually modest

6. damages under HRA

   • 'just and appropriate' - usually modest

   • ECHR = benchmark

Types of loss NOT recoverable

1. pure economic loss

1. general rule: CAN'T recover

2. exceptions:

   • negligent misstatement

   • deceit

   • slander etc.

   • loss of chance

2. cost of remedying defective premises

3. consequential economic loss

   • C must have legal OR beneficial interest in property damaged

QUANTUM OF NON-COMPENSATORY DAMAGES

Nominal damages

• torts actionable per se where there is no actual loss

Exemplary / punitive damages

• recoverable in 3 situations

1. oppressive, arbitrary, unconstitutional action by govt servants

2. D's conduct calculated to make profit

3. statute sanctions

• NOT recoverable for: negligence, public nuisance, breach of statutory duty, deceit

• quantum = discretion of judge / jury (taking into account D's means)

Aggravated damages

• for injury to feelings, caused by malice

• academic debate as to whether compensatory or not - usually part of C's general damages

REDUCTION OF DAMAGES

Duty to mitigate

• test = what was reasonable for C to have done in circumstances (subjective)

• C under duty to take reasonable steps to mitigate AND any reasonable expense C incurs in mitigation is recoverable in damages

• C under duty NOT to do anything UNreasonable to exacerbate damage AND unreasonable expense NOT recoverable

• burden on D to prove C has NOT acted reasonably

• if D proves C failed, damages = what loss would've been had C mitigated

Contributory negligence

• = partial defence

• D has burden of proof

• min 10% - max 90%

• NOT a defence to an intentional tort

Apportionment of liability where more than 1 D

• multiple Ds cause same damage

  • joint and several liability

  • C may recover whole of damages from 1 OR both Ds

  • if C recovers 100% from D1, D1 has right to be indemnified by D2

  • court considers:

1. liability (between D1, D2 AND C); then

2. apportionment (between D1 and D2)

• multiple Ds cause independent damage

  • severally liable

  • BUT C entitled to sue both in 1 claim

INJUNCTIONS

Legal right

• can only grant injunction in support of legal right

Prohibitory injunctions

• in tort, injunction = primary remedy

• damages in lieu = exceptional; granted if:

1. injury to C's legal rights small; +

2. injury assessable in money; +

3. small money payment = adequate compensation; +

4. oppressive to D to grant injunction

• equitable bars to relief apply BUT in serious cases, injunction rarely refused

Mandatory injunctions

• harder to obtain:

  • damages in lieu = primary remedy

  • injunction = exceptional (adequacy of damages hard hurdle)

• equitable bars apply

Quia timet injunctions

• restrain threatened tort

• mandatory OR prohibitory

• C must prove tort highly likely to occur imminently (high degree of proof)