Lecture 12: Remedies and

Defences in Negligence

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Remedies in Tort Law

• Your study of negligence in semester one will have

revealed the many types of injury which can be
sustained as a result of negligence – QUESTION

Can you identify examples?

• Tort Law provides remedies for such losses, they can

be:
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• Equitable (injunction)

• Common Law (compensatory damages)

The Starting Point…….

• The basic principle underpinning an award of damages in tort is that the claimant should be
compensated for the harm they have suffered as a result of the tort.

• A claimant is entitled to be restored to the position that they would have been in had the tort
not been committed as per Livingstone v Rawyards Coal Co (1880) 5 App Cas 25

• Generally, a claimant will not be awarded substantial damages unless it can be proven that
they have experienced some compensatable loss or damage. The claimant's losses may be
monetary/financial or non-monetary/non-financial.
Equitable Remedies in Tort Law

These have a limited role and centre around the use of:

• Injunctions

• Specific Performance

Equitable remedies are always granted at the discretion of the

court – there is no common law right to them even if a claimant
is successful. This Photo by Unknown Author is licensed under
CC BY-NC-ND

You will explore these in semester two.

Common Law Remedies

• Damages

• Compensatory damages aim to shift the burden of the loss sustained from the claimant
back to the person who caused the loss (the defendant, or their employer in VL cases).

• When dealing with negligence claims it is highly unlikely that equitable remedies would
be sought, the usual remedy is compensatory damages and it is these you should
consider for the semester one assessment.
Non-Compensatory Damages

-
Nominal Aggravated Exemplary
Damages Damages Damages
Nominal

• Where rights violated but no loss

• Typically £2 and not necessarily awarded costs
• Only given in relation to torts which are actionable per se e.g
trespass
Aggravated damages

• As a result of injury to claimants feelings.

• Awarded in cases of battery, trespass to person, defamation etc but not negligence
• Appleton v Garrett – dentist who performed unnecessary dental work in order to extend
his financial gain.
• Awarded 15 per cent for aggravated damages of anger, indignation and mental distress
• KD v Chief Constable of Hampshire (2005) police officer behaved inappropriately
towards a victim of crime awarded 10k in compensatory damages and 10k in aggravated
damages because repeated denial resulted in claimant having to undergo prolonged
and distressing cross-examination.
Exemplary/punitive damages

• Teaches the defendant that ‘tort doesn’t

pay’
• Deterrent effect
• John v Mirror Group Newspapers – where
the conduct has been calculated to make a
profit.
• Elton’s diet of death – chewing food and
spitting it out as part of eating disorder.
• 75000 compensatory damages, 200000
exemplary damages + costs
Compensatory Damages

• Financial loss refers to any loss or liability capable of assessment in money terms (see
Forster v Outred & Co [1982] 1 W.L.R. 86)

• Damages for non-monetary loss are relevant in negligence actions and extend to include
damages for:

• Pain and suffering and loss of amenities and physical inconvenience and discomfort
• Psychiatric injury
• Loss of relatives (damages for bereavement by the spouse or parent of a person killed
as a result of a tort).
How to calculate?

• Loss of earning up to date are easy enough to award but what about future losses?

• A 35-year-old salesman rendered unable to work again may have received numerous
promotions and worked until he is 70, or on the other hand may have been made
redundant in 2 years time, or even contract a terminal illness and die at the age of 50.

• Multiplicand
Defences
• Contributory Negligence – Law Reform (Contributory
Negligence) Act 1945

• Where the claimant is found in some way to have contributed

through his or her own fault to his or her injury

• The amount of overall damages will be reduced accordingly

as a percentage eg the claimant is 30% contributory
negligent
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• The onus lies with the defendant to prove this.
• Froom v Butcher;
• Jackson v Murray (2015)
Volenti non fit Injuria

• Where there is consent there can be no injury.

• Volenti is a defence which can arise by express agreement, or be implied from the
claimant’s conduct.

• For this defence to succeed, it must be shown that a claimant was fully informed of the
risks when he or she gave their consent.

• Woolridge v Sumner
• Morris v Murray (1991) – don’t go for a spin in your friend’s aircraft if they have been
drinking!
Illegality

• Ex turpi causa non oritur action- no action based on an illegal cause

• Courts will not assist a claimant who has been guilty of illegal conduct

• Clunis v Camden and Islington Health Authority – detained in hospital, was released by
health authority and stabbed man to death, tried to claim negligence against health
authority.