Bill Duncan Kumbaine

Damages & Other Remedies.

In many cases where physical damage to property has occurred, the purpose of damages is clear – to
compensate the claimant for the loss suffered, which usually means the cost of repairs and other
quantifiable financial loss caused by the tort. It is less clear where personal injury is involved, as the court
may also seek to compensate for future financial loss which can only be estimated as well as the pain and
suffering which has been caused.

The main remedies in tort are damages, which aim to compensate the claimant financially, and
injunctions, which aim to stop or prevent the behaviour which comprises the tort.

Damages are broadly and largely classified into compensatory and non-compensatory damages.

A) Compensatory Damages

These basically aim at restoring the claimant to the position they would have held if the tort hadn’t been
committed and they are classified into Pecuniary and non-pecuniary.

i) Pecuniary damages are ones where a claimant is to be compensated for and to recover any financial
losses incurred. This includes recovering expenses actually and reasonably incurred as a result if the
accident up to the date of the trial Such include medical expenses, clothing etc

These are also awarded where:

-Expenses are incurred by another, See: Donnelly v Joyce (1973)

-Future losses: see Doyle v Wallace (1998)

Sebuliba v Katende [1982] HCB 56, where court may award pecuniary damages
including burial expenses.

Osinde v Onyango [1975] HCB 92

Makumbi v Kigezi African Bus Co. Ltd [1986] HCB 68

ii) Non- Pecuniary Damages are losses which are not financial, although the courts can only compensate
for them in a financial way. In English law, they do this by reference to guidelines produced by the
judicial studies Board, based on awards in previous case.

These are awarded in terms of:

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-The Primary injury

- Pain and suffering

Loss of amenity. See West & Son v Shephard (1964)

B) Non-Compensatory Damages

Here court looks at other reasons other than those considered when awarding compensatory damages and
these may be less, or much more than is required to compensate the loss directly.

These are often looked at in form of special and general damages in nature.

Special Damages must be specific and pleaded for

General damages are by their nature unable to be quantified precisely and cover such things as pain and
suffering, and loss of amenity.

In certain circumstances general damages may be awarded in different forms to achieve slightly different
purposes: contemptuous, nominal, aggravated and exemplary.

i) Contemptuous damages

Where a court recognises that the claimant’s legal rights have technically been infringed, but disapproves
of their conduct, and considers that the action should never have been brought, it may order contemptuous
damages. These will amount to no more than the value of the least valuable coin of the realm. A claimant
awarded contemptuous damages is also unlikely to recover costs. Contemptuous damages are not often
awarded; their main use is in defamation actions.

The award of contemptuous damages, often the value of the smallest coin in the realm, marks the fact that
the claimant has established that a right has been infringed; J in the court’s view the action should never
have been brought. The latter may be because of the actual circumstances of the case, for example where
a ‘one off’ trespass to land has occurred but was no more than a limited incursion causing no actual
damage. The court may also use contemptuous damages to mark its belief that morally at least, although
not legally, the claimant ‘got what they deserved’. Such awards are not uncommon in libel actions. One
consequence of contemptuous damages is that the claimant may find that the award of costs is affected.
Although an order is usually made in favour of the successful party, the judge has a discretion to order
that both sides bear their own costs or even to order the claimant to pay the costs of both sides.
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ii) Nominal Damages.

Where nominal damages are awarded, the claimant’s right has been infringed but little damage has
occurred. The judge will be satisfied that the claimant has acted reasonably in bringing the case. Such
awards are not unusual in cases where the tort is actionable per se such as trespass or where the remedy of
choice is an injunction or a declaration.

s. In Watkins v Secretary of State for the Home Department (2006), the House of Lords ruled that
nominal damages should only be used in cases involving torts which are actionable per se (meaning that
no actual damage need be done)

Also see Ms B v An NHS Trust [2002] EWHC 429

Also see the case of Njirikata

iii) Aggravated damages.

Aggravated damages are awarded to compensate the claimant for injury to feelings and distress which
have been increased by the defendant’s bad motive or wilful behaviour. This means that where a
defendant has behaved in such a way that the claimant has suffered more than would normally be
expected in such a case, the court can show its disapproval by awarding damages which are higher than
would normally be appropriate.

In Thompson v Metropolitan Police Commissioner [1997] 2 All ER 762, Lord Woolf MR connoted
that: ‘Such damages can be awarded where there are aggravating features about the case which would
result in the [claimant] not receiving sufficient compensation for the injury suffered . . . Aggravating
features can include humiliating circumstances . . . or any conduct of those responsible . . . which shows
that they had behaved in a high- handed, insulting, malicious or oppressive manner.’

Also see Rowlands v Chief Constable of Merseyside (2006)

iv) Exemplary Damages.

These involve paying the claimant more than would normally be appropriate, but they differ from
aggravated damages.

First is that in both cases, the disapproval of the defendant’s action is seen to merit an additional award
based on the view taken if the defendant’s behaviour.
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But they differ in that their purpose is actually to offer a serious punishment to the defendant, and to deter
others from behaving in the same way.

Thus, the purpose here is twofold;

-to punish the defendant, &

- to deter others from similar behaviour.

In Rookes v Barnard [1964] AC 1129, Lord Devin made a pronouncement on when Punitive/exemplary
damages may arise. And The only three situations in which damages are allowed to be punitive, i.e. with
the purpose of punishing the wrongdoer rather than aiming simply to compensate the claimant, are in
cases of,

1. Oppressive, arbitrary or unconstitutional actions by the servants of government.

2. Where the defendant's conduct was "calculated" to make a profit for himself.
3. Where a statute expressly authorises the same.

See: Cassell & Co Ltd v Broome (1972) on conduct calculated to make a profit

Huckle v Money (1763) on oppressive conduct by government servants.

Samuel Kaggwa Byekwaso v Attorney General [1982] HCB 101

Injunctions

An injunction is an order of the court which must be obeyed. Breach of injunction amounts to contempt of
court and as such is punishable by imprisonment in more serious cases.

Injunctions are the other main remedy the courts can order in tort cases, and are mainly used to deal with
continuing or repeatable torts such as defamation and nuisance. In issuing an injunction, the court
prohibits the defendant from committing, continuing or repeating a particular tort. Injunctions are an
equitable remedy, which means they are not available as of right to a successful claimant, but are issued
at the discretion of the court, where it is considered to be ‘just and convenient’