Remedies in Torts

Introduction

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 is 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.

Damages

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).

TYPES OF DAMAGES

A. Nominal and contemptuous

Nominal damages will be awarded where the claimant proves that the defendant has committed a tort but the claimant has suffered no loss.

Contemptuous damages consist of the award of a derisory sum, usually the smallest coin of the realm of. They are awarded when the court considers that the claimant’s action, although technically successful, was without merit and should not have been brought. The claimant may then be at risk on costs, which are normally awarded to the successful party.

B. General and special

General damage is the damage that is presumed to flow from torts which are actionable per se, and so need not be specifically pleaded (e.g., loss of reputation in a libel action). Special damage refers to the damage that the claimant must plead and prove as part of his cause of action in torts where damage is the gist of the action (e.g., negligence, nuisance, slander).

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.

C. Aggravated and exemplary

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. In Rookes v. Barnard [1964] AC 1129, 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.

Injunctions

Injunctions are orders made by the courts either restraining or requiring performance of a specific act in order to give effect to the legal rights of the applicant. An injunction that prevents a course of action is said to be prohibitive in nature, and this is the traditional essence of injunctive relief “it commands cessation of a wrongful act”. Somewhat rarer, yet not too distant from this core principle, are mandatory injunctions that compel some behavior of the person to whom they are directed. In cases where mandatory injunctions are granted it is clear that the defendant, while not positively engaged in wrongful conduct, has nevertheless, by a failure or omission to act, infringed upon the rights of the applicant. In commanding the doing of an act by such a defendant, the court is in effect commanding the harmful dormancy to cease.

Jurisdiction

The origins of injunctive relief are found in equity’s exclusive jurisdiction where it was used solely in support of equitable rights. But equity soon developed an auxiliary jurisdiction through which it offered more flexible forms of relief when those of the common law proved to be inadequate. Thus, in particular circumstances, injunctive relief is available to restrain breaches of contract, tortious wrongs and an array of other conduct that infringe upon rights recognised by the common law.

In addition to the exclusive and auxiliary jurisdictions of equity to order injunctions, the common law courts were granted the ability to do the same through statutory reform enacted in the Common Law Procedure Act 1854 (UK) which provided a distinct jurisdiction from both the exclusive and auxiliary operations of equity. It was narrower than the exclusive jurisdiction in that it did not enable the common law courts to issue injunctions in respect of equitable rights, nor did it enable the making of quia timet injunctions. At the same time, it was seen as wider than equity’s auxiliary jurisdiction as there was no requirement of either a proprietary interest or inadequacy of damages.

Types of Injunctions

1. Prohibitive or mandatory
2. Interlocutory or perpetual injunctions

Mandatory injunctions

They are of two kinds:-

1. Mandatory restorative injunction
2. Mandatory enforcing injunction

Mandatory restorative injunction

Mandatory restorative injunction which compels the defendant to repair the consequences of some wrongful act that he or she has committed. In order to obtain such an injunction, the plaintiff must show that, where the wrongful act had not occurred but was merely threatened, he or she would have obtained a prohibitory injunction in relation to the apprehended wrong. For example, in a situation where a house has been built in contravention of statutory planning approval requirements, a mandatory restorative injunction will be granted requiring the defendant to demolish it, provided that, before the house was built, the plaintiff can establish that he or she would have obtained a prohibitory injunction preventing the defendant from building it.

Mandatory enforcing injunctions

Mandatory injunction is the mandatory enforcing injunction which compels the defendant to do some positive act that he or she has promised to do for valuable consideration. In such cases the court will need to be satisfied that the agreement is specifically enforceable and that, in all the circumstances, it is just and equitable to grant the injunction

Perpetual injunctions

Injunctions can also be classified according to the period of time for which the order is to remain in force. A perpetual injunction is the injunction granted after a full hearing of the claim on its merits. Because the merits of the case have been argued, the perpetual injunction is intended to finally settle relations between the parties.

Interlocutory injunctions

An interlocutory injunction is a provisional order made at an earlier stage in the proceedings before the court has had the opportunity to assess the merits of the application. Generally, interlocutory injunctions are expressed to be in force until the trial of the action or further order of the court. The term ‘interim injunction’ is often used interchangeably with interlocutory injunction. However, there is a technical difference between the two, in that an interim injunction is more temporary than an interlocutory injunction, and is usually expressed to remain in force until a specified date prior to the final hearing. In general, interlocutory injunctions will only be granted after notice of the application has been given to the defendant, so that the defendant has the opportunity to resist the claim.

Undertaking as to damages

A usual condition of granting an interlocutory injunction is that the plaintiff must give an undertaking as to damages. The undertaking operates as a protection to the defendant should the court later rule that the interlocutory injunction should not have been granted. The undertaking binds the plaintiff to compensate the defendant for any damage suffered by the defendant on account of the granting of the interlocutory injunction. If the plaintiff refuses to give the undertaking, the interlocutory injunction will be refused.

QUIA TIMET INJUNCTIONS

Generally, injunctive relief relates to some infringement or alleged infringement of the plaintiff’s rights. However, inunctions can be granted in relation to circumstances where there has not yet been an infringement of rights. Injunctions granted on the basis that there is a threat that the plaintiff’s rights will be infringed are known as quia timet injunctions. The expression “quia timet” means “since he fears”. The essential purpose of a quia timet injunction is to prevent a wrong being committed. Lord Upjohn observed that a quia timet injunction arises in the following two types of case:

where, as yet, no harm to the defendant has occurred but it is threatened or intended, and

where harm has been done by the earlier actions of the defendant, and the plaintiff has been compensated, but the plaintiff fears that future wrongs may be committed by the defendant

Injunctions to Enforce Negative Stipulations

Generally, the equitable enforcement of contractual rights is by means of an order for specific performance which requires the defendant to carry out his or her contractual obligation. This is the order that is usually sought in relation to positive contractual obligations. However, where there is a negative contractual obligation, the injunction is the usual equitable relief that is sought. A negative contractual obligation is one where inactivity on the part of the promisor is the essence of the obligation. Negative contractual obligations can be express or implied. The classical illustration of an enforceable negative contractual obligation is a reasonable restraint of trade. An important illustration of injunctive relief being sought to enforce negative contractual obligations is with restraints of trade in the context of personal service contracts.

Injunctions to enforce statutory rights

Where there has been a breach of statute, there are a number of possibilities in so far as obtaining an injunction is concerned. First, the legislation may expressly or impliedly exclude any remedy other than those which it expressly provides for, thereby excluding the remedy of an injunction. A second possibility is that the statute directly confers upon a person or category of persons the right of enforcement. This often occurs in the context of local government legislation. In exercising its discretion to grant relief, a court will grant an injunction only if the breach of statute also amounts to an infringement of public rights.