REMEDIES IN TORT

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CONTENT

A. LIABILITY IN TORTS
B. DAMAGES IN TORTS
C. INJUNCTIONS IN TORTS

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A. LIABILITY IN TORT
There are three commonest tortious
claims found in damages for personal
injury:
◦ Negligence
◦ Occupier’s Liability
◦ Breach of Statutory Duty

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Negligence
Ingredients of the tort of negligence
◦ The existence of duty of care
◦ The duty owed to the claimant
◦ Negligence,i.e, breach of duty of care
◦ Causation of damage
◦ Damage not too remote

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Duty Situations

Important duty of care situations in

practice
◦ Duty owed by users on the highway to other
users and to those beside the highway
◦ The duty owed by manufacturers of product to
users or consumers of the products.
◦ The duty owed by professional persons to
clients, e.g, medical negligence.
◦ The duty owed by builders to owners and
occupiers of the buildings.
◦ The duty owed by employers to employees.

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Breach of Statutory Duty

Introduction
◦ Breach of statutory duty are normally arise
from the specific duties imposed upon various
usually employers, with regard to safety and
health in various places of work, industrial
processes and commercial premises.
◦ Those duties are laid down in statute e.g
Occupational Safety and Health Act 1994

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Absolute duties
◦ Many duties are absolute. They require that
something shall be done without further
qualification.
◦ They are very strictly construed, and breach of
an absolute duty will give rise to liability even
where there is no fault on the part of the D.
◦ Section 15. General duties of employers
and self-employed persons to their
employees. (1) It shall be the duty of every
employer and every self-employed person to
ensure, so far as is practicable, the safety,
health and welfare at work of all his
employees.
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Duties of reasonable care
◦ Such duties require persons to act with
reasonable care, thhe standard of care is
similar to the common law standard and a
reasonable foreseeability test will be applied.

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 Hybrid Duties
◦ There are duties which are less than absolute,
but require than reasonable care.
◦ E.g: a duty to “take such steps as may be
necessary to prevent…” or “to take all
appropriate precautions”.
◦ There is no single test for breach of such
duties.
◦ The standard of care required is a question of
the interpretation of each individual statutory
section or regulation.
◦ Word indicates a hybrid duty: adequate,
secure, appropriate, sufficient, necessary,
practicable.

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To establish Liability
8 conditions to be satisfied before a claimant can
succeed in a claim for damages for breach of
statutory duty.
1. The legislation applies.
2. The duty is imposed upon D or someone for
whom the D is vicariously liable.
3. The duty is owed to the claimant.
4. The breach of legislation gives rise to civil
liability.

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5. The D is breach of duty.
6. The claimant is suffered damage.
7. The damage is of the kind the statute was
intended to prevent.
8. The breach of statutory duty caused the
damage.

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Causation
Causation is established by applying the
“but for” test.
The D will have a good defence if he can
establish that the claimant would still
have been injured even if the D had
fulfilled his statutory duty.
◦ McWilliams v Sir William Arrol & Co Ltd [1962]
1 WLR 295
◦ Where the duty is to provide a safety device,
and the D has failed to provide it, there will still
be no liability if the D shows that even if he
had provided the safety device, the claimant
would probably not have used it.
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Causation arises where the duty is
imposed not only on the D but also the
claimant.
E.g, duties are not only imposed on
employer but also employee.
 Section 24. General duties of employees
at work.
If the D breach is coextensive with and
consists of the claimant’s own wrongful
act and nothing more, then the D will not
be liable for his own breach.( Ginty v
Belmont Building Supplies Ltd [1959] 1
ALL ER 414)
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 However the Claimant must establish some fault
on the part of the D which makes the D’s breach
wider and not so coextensive with the claimant’s
breach.
 Eg: by showing that the D has not done all he
reasonably could to prevent the breach occurring
or caused or permitted it to happen ( Boyle v
Kodak [1969] 1 WLR 661).
 If the duty is imposed not directly to the D but
upon someone he vicariously liable.
In this situation, it depends whether the other
party (tortfeasor) could have raised a defence of
Volenti Non Fit Injuria against the claimant, if not
D will be liable.
 Contibutory negligence is a good partial defence
to breach of statutory duty. 14
B. DAMAGES IN TORT
Liability
To establish liability on the D in order
to recover damages, the claimant
must show:

The elements of the Tort

Causation
Loss and damage
Loss and damage not too remote.

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Types of Tortious Act
Will not discuss the elements in detail.
Torts involve the breach of some duty
owed by the D to the claimant, e.g:
negligence, breach of statutory duty.
Involve the performance of some
deliberate act calculated or likely to cause
harm to the claimant.
Strict liability.

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Causation
The tortious act caused injury, loss or
damage.
It need not be the sole cause.
But For test- the claimant must show that
but the D’s tortious act he would not, on
the balance of probabilities , have suffered
the loss or injuries.
The claim can also be based on the
tortious act increased the likelihood of
damage occurring , but it must still have
caused the injury or loss on the balance of
probabilities. 17
Causation may be broken by a
supervening act.
It can come between tortious action and
damage, in which the chain of causation
may be broken.
If the supervening act was reasonably
forseeable and made little difference to
the chain of events, the chain is probably
not broken.
If it was not forseeable and a wholly new
event, the chain of causation may be
broken even if ‘but for’ test is still
satisfied.
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Loss and damage
The claimant must establish loss and damage
in order to recover damages.
Do not have to establish the extent of his loss
, so long he can prove it exists , the court will
then assess the damage.
There are limitation in law as to the type of
loss in respect of which damages can be
recovered, e.g pure economic loss in
negligence is not recoverable. ( Junior Book
Ltd v Veitchi & Co Ltd [1983] 1 AC 520).
Exception, economic loss resulting from
negligent misstatement and negligence
professional advice. 19
However, this is limited only to cases of
negligence.
Pure economic loss is recoverable in such
cases like misrepresentation, deceit,
procuring breach of contract, conspiracy,
slander, conversion, breach of copyright,
patent infringement.

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Remoteness
Test of remoteness in tort is reasonable
forseeability: it must have been
reasonably foreseeable that the damage
suffered by the claimant might result from
the defendant’s act.
Degree of likelihood is not that clear.
The cases tend to suggest that a slight
degree of likelihood is required in tort.
It is not necessary that the damage
suffered should have been forseeable, the
broad type of damage will suffice.
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Quantum of Damages

Compensatory nature of damages

Damages in tort are compensatory in
nature.
To put the claimant into the position he
would have been in had the tort not been
committed
A claimant may receive damages of any
loss directly caused by the tortious act
and consequential loss.

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Time of assessment
Assessed at the date when damage
occurs.
This will not necessarily be the same as
the date when the cause of action arose.
The court are also bound to take account
of all events which occur prior to trial,
which suggests that damages should be
valued as at the date of trial.
Dodd Properties (Kent) Ltd v. Canterbury
City Council [1980] 1 ALL ER 928.

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Mode of Assessment: General
Mode of assessment varies according to
the tort and the nature of loss.
Personal injury, economic loss consequent
on injury or death, Personal non financial
damage, damage to property, interference
with property and pure economic loss.

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Other kinds of personal non financial
damage
Includes loss of liberty, mental distress,
damage and inconvenience and
discomfort.
E.g: loss of liberty may result from false
imprisonment, malicious prosecution or
negligence.
E.g: Mental distress amounts to sufferring
is a personal injury.

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Damage to Property
◦ The two modes of assessing damages
◦ If damage done to claimant’s property there
are 2 alternative modes of assessing damages.
◦ 1. the cost of cure basis
awarding the cost of repairing the
damaged property or replacing the destroyed
property
◦ 2. Diminution in value basis
awarding the value of the property
destroyed or the difference between its value
today and its value before it was damaged.
There is no fixed rule as to which measure is
correct , it depends on what is reasonable in all
the circumstances. 26
◦ Making the choice
◦ Depending on type of cases.
◦ Land’s case
reinstatement of damaged property or
substitution ( what is required to make good
his damage)
◦ Case of goods
Deciding factors is the value of the
goods/chattel.
The court /insurance co, will award cost of
repairing a damaged motorcar or its value
before it was damaged.
Other considerations: Replacement cost, Resale
value.
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Consequential economic loss

◦ Consequential economic loss can also be

recovered.
◦ The claimant may recover damages for loss of
its use until it is replaced or being repaired.
◦ Include cost of hiring an alternative( so long
this is reasonable).
◦ Lost of profit in the interim.

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Negligent Valuation of Property
 In cases of negligent survey reports- claimant
had bought the property above the price he
would have paid if the report is correct.
 Measure of damages: diminution in value, not
cost of cure.
 The claimant can recover the difference between
the price but not the cost of repairs.

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Interference with Property
Goods
◦ Occurs in the case of conversion and trespass.
◦ If claimant has been permanently deprived of
goods, damages will be assessed on the same
alternative bases as it was destroyed.
◦ He will either recover the value of the goods
lost or the cost of replacing them and
consequential damages for loss of use.

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Land
◦ In trespass in land, damages are recoverable
without proof of loss.
◦ If the claimant can show financial loss deriving
from the loss of use of the land, damages may
be assessed on that basis.
◦ Otherwise, the assessment may be based on
the fair rent for the land or fair sum for
granting an easement.
◦ If nuisance occurs on the land, damages are
assessed on loss of amenity basis.

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Pure Economic loss
◦ This loss can normally be quantified on a
financial basis.
◦ It may be also necessary for a court to quantify
a chance in order to award damages for lost
opportunity.

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Reduction of Damages
Contributory Negligence
It is a partial defence for a D and accordingly a
factor which reduces damages in tort.
It is for the D to raise and prove. Once
established , the court is obliged to apportion
responsibility in some way.

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 Apportionment of Responsibility
◦ It is made within the court’s discretion and
depends on the facts of the case.
◦ Matters considered:
 i. negligence by claimant which cause the accident
and injury or exacerbated the injury.
 ii. Extent to which the claimant caused his own
injury but extent to which he is blameworthy.
◦ Measurement:
 The extent to which the claimant is responsible for
his own or her damage as opposed to anyone else.
 How it is Quantified: 50% or more.
 Fitzgerald v Lane [1989] AC 328
 2 Ds and 1 claimant were found to be all three
equally at fault, and assessed damages on the
basis of 1/3. The House of Lords, contributory
negligence was 50% as against each D. 34
 The form of assessment
 ContributoryNegligence is always assessed as a
percentage or fraction and I a round number e.g
20%, 25%, 40%, 10%.
 Less than 10% is likely to be ignored by the court.

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Apportionment of Responsibility
◦ Apportionment between 2 Ds
 2 Ds liable to claimant, the decision has to be
made as to what proportion of the claimant’s
damages each should pay.
 Liiability in tort is either joint or several. If either
of them could not pay, the 100% goes to the one
who is able to pay.
 If both of Ds are able to pay, the court will
apportion damages as it sees fit depending on
degrees of fault, blameworthiness and causation.

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◦ Apportionment between Ds and a claimant
 The proportion of contributory negligence must be
dealt with first and then the apportionment
between Ds can be made.
 E.g:Claimant is to be blamed for 10%.
Apportionment of liability of (90% for both Ds):
i. 1/3 for D 1 (30% out of 90%)
ii. 2/3 to D 2. (6% out of 90%)
E.g: Claimant is to be blamed for 20%.

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Apportionment between 2 causes.
◦ Where the claimant’s injury is the result of
more than one cause.
◦ There was a D that can be liable for some of
the injury.
◦ The court must make an apportionment to
assess what proportion of claimant’s injury the
D can be said to be responsible for.

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Mitigation
◦ The positive requirement
 The claimant has a duty to mitigate.However, he
is not required to minimise his loss at all cost,
rather that he has to take all reasonable steps to
do so.
 If claimant fails to do so, damages will be
assessed on the basis on what the loss would
have been had he taken reasonable steps.
 Any reasonable expense incurred in order to
mitigate may be recovered as damages, even if
no mitigation is achieved.

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 The negative requirement
◦ The claimant is under a duty not to do anything
unreasonable subsequent to the damage which
might exacerbate it, and not to incur any
unreasonable expense which increases the
extent of his loss.
◦ The test is whether it was reasonable for the
claimant to have behaved as he did at the
time.
◦ If claimant fails to do so, damages will be
assessed on the basis on what the loss would
have been had he not taken action incurred
that expense.

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 The test is subjective
 It is what is reasonably subjective.
 The question is whether it was reasonable for this
claimant in all the circumstances to have behaved
as he did.
 Not whether a reasonable person would have
behaved in that way.
 E.g: The court in a case of personal injury would
hold that:
 It is reasonable for the parents of an injured child to stay at
home to care for their child to give up their jobs in order to
stay at home to care for their child, even though their
financial loss would have been far less had they employed a
nurse and a nanny.

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 The burden of proof
 Is on the D to show that the claimant has failed to
take reasonable steps to mitigate, not on the
claimant to show he has done so.

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Exemplary Damages
 Also known as punitive damages can be awarded
in 3 circumstances (Rookes v Barnard [1964] AC
1129):
 i. Where there has been oppressive or
unconstitutional action by the servants of the
government.
 ii. Where the D’s conduct has been calculated to
make a profit which may well exceed the
compensation payable to the claimant.
 iii. Such damages are expressly authorised by
statute.

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The quantum of exemplary damages is
highly arbitrary and within the discretion
of the judge.
However the D’s means is normally taken
into account.
Thompson vCommissioner of Police of the
Metropolice [1997] 2 All Er 762
◦ Involving misconduct by police, the judge must
give the jury guidance as to quantum and
indicate a range for exemplary damages of
£5,000 and £50,000.

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Aggravated Damages
This damages can be awarded in a case of
malicious falsehood.
Such damages go beyond compensenting
the claimant for loss, but include an
element of damages for injury to feelings
caused by the D’s conduct and malicious
intent.

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C. INJUNCTIONS IN TORT
An injunction can only be granted in
support of a legal right.
Since a tort is a legal wrong the claimant
has a right to prevent that legal wrong.
Injunction is useful in tort to restrain
trespass, nuisance, defamation, inducing
breach of contract an all torts involving
intellectual property.

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Prohibitory Injunctions
◦ The Primary Remedy
◦ Strictly, an injunction is granted when damages
would not be an adequate remedy.
◦ However, injunction has become the primary
remedy unless:
 The injury to the claimant’s legal rights is small;
 The injury is assessable in money;
 A small money payment would be adequate
compensation; and
 It would be oppressive to the D to grant an
injunction.

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Appropriateness of an injunction
◦ Injunction becomes a right to which the
claimant is entitled unless there are special
circumstances.
◦ This is because an injunction is so obviously
appropriate and because damages will rarely be
adequate.
◦ Damages can only compensate a claimant for
past damage and not to prevent future
recurrence.

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Refusal of Injunctions
◦ Injunctions may be refused for the reasons
mentioned before and/or it is barred in equity
by delay, acquiescence, or his or her own
conduct.
◦ But in serious case, injunctions are rarely
refused, even if considerable hardship may be
caused to the D or if the interest of the public
at large is overwhelmingly greater than the
private interest of the claimant.

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Mandatory Injunctions
◦ Nature
◦ Order to undo the wrong.
◦ Usually sought in the case of trespass.
◦ To require D to remove something from the
claimant’s land or which causes a nuisance.
◦ It will not be made if hardship may be caused
to the D.
◦ It is refused not only when the serious hardship
would be caused to D but simply where the
hardship suffered would on balance be greater
than that suffered by the claimant if the order
was refused.

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Difficultyin Obtaining a Mandatory
Injunction

◦ Mandatory injunctions are much harder to

obtain than prohibitory injunctions.
◦ The grant is not automatic , damages in lieu
will usually be regarded.

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Quia Timet Injunctions
◦ Quia Timet injunctions may be granted to
restrain a tort.
◦ Usually in the case of nuisance.
◦ A high degree of proof is required.
◦ The claimant must show, on good evidence,
that the tort is highly likely to occur and to
occur imminently.

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THANK YOU….

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