Damages (AQA A-Level Law): Revision Notes

Damages

Introduction to damages in tort

Damages are the primary remedy in tort law and represent monetary compensation awarded to a successful claimant. This area of law will be assessed in Paper 2, where you will need to apply damages principles to scenario-based questions alongside the relevant substantive tort (such as negligence, nuisance, or trespass).

Compensatory damages

Purpose of compensatory damages

The fundamental aim of damages in tort is to achieve restitutio in integrum, a Latin phrase meaning to restore the claimant to the position they would have been in if the tort had not been committed, as far as money can achieve this.

However, the courts have acknowledged the inherent limitations of monetary compensation. In British Transport Commission v Gourley (1956), the court recognised that no amount of money can truly compensate someone for grievous injuries. Instead, judges must endeavour to arrive at a fair estimate by taking into account all relevant considerations, known as the heads of damage.

The heads of damage serve as categories under which different types of loss can be assessed and calculated. These are divided into general damages and special damages.

Physical injury to people

This category encompasses all types of personal injury claims, including both physical injuries and, where the claim has been successful, psychiatric harm.

General damages

General damages are described as unliquidated or non-pecuniary, meaning they cannot be calculated with mathematical precision. The judge exercises discretion in determining the appropriate amount to award based on the circumstances of each case.

General damages are awarded for the following categories:

Pain and suffering: This head of damage covers past, present, and future physical pain and mental anguish. It includes distress caused by the fear of future medical treatment or anguish arising from a shortened life expectancy. However, a crucial requirement established in Wise v Kaye (1962) is that the claimant must be consciously aware of their injuries. In that case, the claimant was left permanently unconscious and could not claim for pain and suffering during the period of unconsciousness because she had no awareness of her condition.

Loss of amenity: This compensates claimants for the loss of things they previously enjoyed doing. Examples include the loss of particular skills or hobbies, diminished senses (such as sight or hearing), and even reduced marriage prospects where the injury has affected the claimant's personal life.

Future loss: This category covers anticipated future losses such as pension rights and future expenses, including the cost of nursing care, medical treatment, and adapted accommodation.

Specific injuries: For most types of injuries, there exists a standard tariff provided by the Judicial Studies Board, published in the Kemp and Kemp Quantum of Damages. This guidance helps ensure consistency in awards for similar injuries.

Special damages

Unlike general damages, special damages represent losses that can be assessed with reasonable accuracy. These are liquidated damages where the precise financial loss can be calculated.

Special damages typically include:

Medical expenses: Claimants can recover the cost of private medical treatment, not just NHS treatment. This recognises that claimants should not be limited to only publicly funded healthcare.

Loss of earnings: The treatment of loss of earnings depends on when the loss occurred. Pre-trial loss of earnings falls under special damages because the exact amount can be calculated by reference to the claimant's actual lost income up to the trial date.

Calculation of post-trial loss of earnings

Post-trial loss of earnings is treated as general damages because it is impossible to predict with certainty how much the claimant would have earned in the future. To address this uncertainty, the courts have developed a formula:

Where the claimant's life expectancy has been shortened by the accident, the calculation of future loss of earnings must be adjusted accordingly. The leading case on this point is Pickett v British Rail Engineering Ltd (1980), where a 51-year-old claimant who inhaled asbestos developed mesothelioma with a life expectancy of only one year. Damages were nevertheless calculated on the basis that he would have been expected to work until 65 years old, ensuring he was compensated for the full loss of his working life.

Pre-trial expenses

Claimants may recover special damages for various expenses incurred between the date of injury and the trial date. These expenses must be reasonably incurred and causally connected to the tort. Common examples include medical expenses (whether NHS or private), travel costs to attend medical appointments, the cost of medication, and expenses for adapting the home or vehicle to accommodate disabilities.

Damage to property

When property is destroyed completely, damages are generally assessed by reference to the market value of the property at the time of its destruction. This reflects the principle that the claimant should be placed in the position they would have been in had the tort not occurred.

Where property is damaged but not completely destroyed, damages are usually assessed by reference to the cost of repair. However, if the repair cost exceeds the market value of the property, then the market value is used instead. This prevents claimants from recovering more than the actual value of the property and ensures the defendant is not required to pay for betterment.

Economic loss

Pure economic loss (financial loss with no accompanying physical injury or property damage) is notoriously difficult to claim in tort, particularly in negligence. However, in the very few cases where such a claim succeeds, the loss can typically be calculated exactly, making it a form of special damages.

More commonly, economic loss arises as a consequence of personal injury or property damage. For example, loss of earnings following a personal injury claim falls into this category. Such consequential economic loss is more readily recoverable and, because it can be calculated precisely, will be included in the overall damages award.

Interim and periodical payments

While damages are traditionally awarded as a lump sum payment, the law recognises that this approach may not always be appropriate, particularly in cases involving catastrophic injuries or long-term care needs.

Interim payments

Part 25 of the Civil Procedure Rules provides for interim payments, which are payments made before the full settlement is awarded. These are most commonly used in personal injury claims, especially where the claim involves substantial damages arising from catastrophic injuries.

In such cases, the claimant may require immediate financial resources before the final calculation of damages is complete. Interim payments enable claimants to pay for urgent necessities such as adapted housing, specialist equipment, or expensive medical care and rehabilitation without having to wait until the case concludes.

Periodical payments

Section 2 of the Damages Act 1996 provides courts with the power to order that damages for future pecuniary loss in personal injury cases should take the form of periodical payments. This means regular payments made to the claimant over time rather than a single lump sum.

Types of damages (other than compensatory)

Beyond compensatory damages, which form the vast majority of damages awards in tort, there exist several other types of damages that serve different purposes.

Nominal damages

Nominal damages are token awards, often as little as $1, paid when the court finds that a tort has been committed but the claimant has suffered no actual loss or damage. Such awards vindicate the claimant's legal rights even though no financial loss has occurred. For example, in a trespass to land case, a claimant might receive nominal damages even though the trespass caused no physical damage to the property.

Contemptuous damages

Contemptuous damages are awarded where the court considers that the action should never have been brought, often because the claimant's own behaviour has been reprehensible or because the claim is trivial. Like nominal damages, these are very small sums, but they carry the additional message that the court disapproves of the claimant bringing the case. A claimant who receives contemptuous damages may be at risk of having to pay the defendant's legal costs despite technically winning the case.

Aggravated damages

Aggravated damages may be awarded when the court determines that the claimant's injury has been made worse by the defendant's conduct. This might occur where the defendant has behaved in a particularly high-handed, malicious, or oppressive manner. Aggravated damages increase the compensatory award to reflect the additional harm caused by the defendant's behaviour, such as increased humiliation, distress, or injury to feelings.

Mitigation of loss

However, what constitutes 'reasonable' steps depends on all the circumstances. A claimant is not required to take unreasonable risks, undergo dangerous procedures, or incur substantial expense to mitigate their loss.

Key cases on damages

Injunctions

An injunction is a court order that either prevents a defendant from doing something (a prohibitory injunction) or compels a defendant to do something (a mandatory injunction). Unlike damages, which are awarded as of right when a claimant succeeds, injunctions are equitable remedies granted at the discretion of the court.

Injunctions are most commonly used in torts such as nuisance and trespass to prevent the continuation of tortious conduct. For example, in a private nuisance case involving noise pollution, the court might grant an injunction ordering the defendant to cease the noise-creating activity, rather than simply awarding damages.

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