#2281 - Damages Working Guide - Tort Law

Damages

• What are they?

  • Aren’t just pecuniary

    • Compensatory

    • Nominal

    • Aggravated

    • Restitutionary

    • Disgorgement

    • Deteratative

      • Etc.

  • HRA s.8(1): Public Authority infringes Convention Right

    • Must be “just satisfaction” that damages should be awarded.

      • Factors to take into account = any relief/remedy granted

      • AND consequences of that decision

        • Damages not available as a right.

• Compensatory Damages – Personal Injury

  • Compensation = reparation (making good losses people have suffered) Two types:

    • Pecuniary losses = simple

      • Wells v Wells

        • Can claim for

          • Loss of Earnings

          • Cost of Care

      • Minus any collateral benefits unless they are

        • Additional insurance benefits

        • Generosity of third parties giving money/care

      • So “free accommodation” is a collateral benefit:

        • O’Brien v Independent Assessor: X brings claim for being in prison for longer than he should have been. Home Office admit liability but try to reduce damages b/c X has got free board and lodging by being in prison.

          • Lord Bingham: as free men they would have had to keep themselves alive, so deduction should reflect this freebies they’ve received by staying in prison.

          • Lord Bridge (dis): if as result of injury X gets put in hospital and lodges there, we wouldn’t normally reduce the damages then

      • Free Care is not

        • Hunt v Severs

          • Person provides free care – taken into account?

          • HoL: recover full amount. Hold on trust for those giving free care

            • UNLESS person giving free care is actually D himself, in which case damages reduced.

    • Non Pecuniary losses = intangible e.g. loss of enjoyment, use, pain and suffering (inc distress owing to loss of life expectancy – Admin of Justice Act 1982 s.1(1)(b))

      • Wells v Wells

        • Brought claim also for pain and suffering + loss of amenity.

          • Edelman: figure will essentially be arbitrary

            • Judicial Studies Board: publish book to say how much each particular type of non-pecuniary “costs”

            • E.g. loss of finger = 2000, which factors in pain and suffering + loss of amenity.

      • And you can get these even if you’re in a coma

        • West v Shephard

          • Maj HoL: get even if you were in a coma b/c you have lost being able to appreciate things consciously for that period of time.

    • Debate over whether you can claim where you’ve suffered no loss

      • Ashley v Chief Constable

        • C shot by police owing to mistake of identity. Police admitted negligence and paid all costs, but C wanted punitive damages.

          • Lord Roger: if no loss, then do have award of damages – but called nominal. Losses can only be awarded for financial losses or one of those exceptions

          • Lord Scott: damages also about vindicating people’s rights. Can get substantial award for value of right infringed.

      • Constantine v Imperial Hotels

        • C refused lodging by D b/c racist. C sues them for failing to provide accommodation as an innkeeper. D argues that C got better accommodation down the road so D ought not pay.

        • Justice Birkhead: you can have nominal damages – infringement of rights leads to injured feelings, so get 20.

          • Stevens: 20 in 1945 = not nominal damages for the time, but substantial damages for infringement of D’s rights.

• Compensatory Damages – Damage to Property

  • Same principles as above

    • If destroyed = cost of replacement

    • If damaged = diminution in value from time of destruction (normally cost of repair)

  • Consequential losses also included as long as not too remote. (e.g. re-insurance, transport to location of replacement, any damages from breach of contract owing to loss of property etc.)

Non Compensatory Damages

• Punitive damages/ exemplary damages

  • Edelman: label has a meaning

    • Punitive = punishment

    • Exemplary = deterrent to D and others in D’s situations

  • Kuddus v CC of Leicestershire Constabulary [2001]:

    • Lord Nicholls: C has suffered no loss, but D’s wrongdoing is so bad that punitive damages should be awarded.

    • Lord Scott: punishment for criminal law, not private law. Compensatory damages where losses suffered only place where exemplary damages used.

      • Victims of tort should be compensated for their injuries, not able to receive windfalls at public expense.

• Account of profits (disgorgement)

  • These damages tend not to be claimed/awarded in tort (but are common in equity)

  • Livingston

    • Where C and D had assumed that coal had been reserved to D’s company. Turned out C had right to the coal and D accepted would have to pay C losses of coal, but C demanded the profits as well.

      • Principle = where deliberate breach then disgorgement damages available.

      • If mistaken/negligent then no disgorgement, damages = only loss of item.

  • Not applied in Thomas v Halifax even though deliberate breach.

• Restitutionary Damages

  • Where D takes something, C can claim them all back.

• Nominal Damages:

  • Lord Scott: never be available b/c right has been infringed

  • Lord Roger: nominal damages awarded b/c no loss suffered – nominal damages to reflect right being infringed.

• Aggravated...