Remedies in tort

Remedies in tort sit at the junction of doctrine and policy. The claimant who establishes liability must still persuade the court to grant an appropriate remedy—usually compensatory damages, but sometimes an injunction, an account of profits, or a declaration. The governing principle, repeated for over a century, is that tort damages aim to put the claimant in the position she would have occupied had the tort not been committed (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25). Yet that formula conceals contested questions: how to value lost years, pain, or reputation; when a court should issue a mandatory injunction rather than monetary compensation; whether gain-based awards belong in tort at all; and how far public policy constrains or shapes quantum.

This note focuses on compensatory damages—the dominant remedy—in three categories: (i) pecuniary loss (past and future medical care, loss of earnings, loss of earning capacity, loss of dependency under the Fatal Accidents Act 1976); (ii) non-pecuniary loss (pain, suffering, loss of amenity, bereavement); and (iii) property damage. It then surveys injunctions, particularly in nuisance and trespass, and outlines the emergence of restitutionary remedies following Attorney General v Blake [2001] 1 AC 268.

By the end of Week 16 you will understand the structure of a personal-injury claim schedule, the Ogden Tables, the test for recoverability of care costs and accommodation, the Judicial Studies Board Guidelines (now the Judicial College Guidelines), the availability of aggravated and exemplary damages, and the interaction between private law awards and the state compensation scheme.

Remedies are often treated as technical, even arid. But they determine whether tort law vindicates rights, compensates loss, deters wrongdoing, or redistributes resources. Whether in a catastrophic spinal injury claim or a nuisance dispute over tree roots, the remedy chosen reflects deeper commitments about the purpose of tort itself.

The modern law of remedies rests on three historical strata.

First, the common-law forms of action. In trespass (trespass vi et armis, trespass on the case) the writ commanded the defendant to satisfy the claimant or show cause; the remedy was damages, assessed by a jury. Equity, by contrast, offered the injunction and specific relief. The Judicature Acts 1873–75 fused administration but not substance: law courts awarded damages, equity granted injunctions. That division still echoes—nuisance claimants may seek damages or an injunction, but the principles differ.

Second, the rise of actuarial calculation. Before Wells v Wells [1999] 1 AC 345, courts had no standard discount rate and used rough-and-ready multipliers. The introduction of the Ogden Tables (named after Sir Michael Ogden QC) in the 1980s, and their statutory endorsement in the Damages Act 1996, marked the shift from impressionistic to arithmetical assessment of future loss. Section 1 of the 1996 Act empowered the Lord Chancellor to set a discount rate by reference to investment returns; negative rates (e.g. −0.25% in 2017, −0.5% in 2019, +0.5% in 2024) reflect the real-world returns achievable by a risk-averse investor, though the political economy of the rate remains contentious (insurers argue it drives up premiums; claimants' groups argue anything above a negative rate undercompensates).

Third, the Fatal Accidents Act 1846 (Lord Campbell's Act) and its successors. At common law, actio personalis moritur cum persona—a personal action died with the person—so a tortfeasor who killed his victim escaped liability to the estate. The 1846 Act created a statutory action for dependants, remedying the anomaly that it was cheaper to kill than to maim. The present consolidation is the Fatal Accidents Act 1976 (as amended), which permits spouses, civil partners, cohabitants of at least two years, parents, and children to recover loss of dependency. The Law Reform (Miscellaneous Provisions) Act 1934 separately permits the estate to sue for losses accrued up to death.

Injunctions, though available since the Court of Chancery, became doctrinally structured only in the nineteenth century. The Court of Chancery refused injunctions where damages were adequate (Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287), a rule that survived fusion and still governs nuisance. The Law Commission's 2012 review of Shelfer proposed reform but implementation remains pending.

Exemplary (punitive) damages appeared sporadically in the eighteenth century, were confined by Rookes v Barnard [1964] AC 1129 to three narrow categories, and re-emerged as a live remedy in malicious prosecution and misfeasance in public office. Restitutionary or gain-based damages, always heterodox in tort, gained doctrinal footing in Attorney General v Blake and Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323, though their precise rationale remains disputed.

(a) The compensatory principle

Tort damages are compensatory, not punitive (save in the narrow categories recognised in Rookes v Barnard). The touchstone is restitutio in integrum: the claimant should be restored, so far as money can do it, to the position she would have enjoyed had the tort not occurred (Livingstone v Rawyards Coal Co). This distinguishes tort from contract, where damages aim at the expectation measure (the position the claimant would have enjoyed had the contract been performed). In tort, the counterfactual is the status quo ante, not a promised future.

Damages are awarded once and for all, as a lump sum. Provisional damages (s 32A Senior Courts Act 1981) and periodical payment orders (s 2 Damages Act 1996, inserted by Courts Act 2003 s 100) are exceptions, available where there is a risk of future serious deterioration or where future care needs are uncertain.

(b) Pecuniary loss: general and special damages

General damages are those which the law presumes to flow from the tort: future loss of earnings, loss of earning capacity, pain and suffering, loss of amenity. Special damages are quantified losses proved at trial: past medical expenses, past loss of earnings, cost of past care, vehicle repair.

(i) Pre-trial pecuniary loss

Past loss of earnings, net of tax and national insurance but gross of benefits (by virtue of the recoupment regime in the Social Security (Recovery of Benefits) Act 1997), is straightforward in principle. Deductions for avoided living expenses are rare (cf. Saunders v Edwards [1987] 1 WLR 1116 where dishonesty barred a claim).

Past care provided by family or friends is recoverable even if provided gratuitously, provided the carer has given up time and the need is referable to the tort: Donnelly v Joyce [1974] QB 454; Giambrone v JMC Holidays Ltd (t/a Sunworld Holidays) [2002] EWHC 2932 (QB). The rationale is that the claimant has a need, met by another; the claimant holds the award on trust for the carer (Hunt v Severs [1994] 2 AC 350, though Hunt was doubted in Conner v Surrey County Council [2010] EWCA Civ 286 on the trust point).

(ii) Future pecuniary loss: the multiplier/multiplicand method

Future loss of earnings is calculated by (i) identifying the net annual loss (the multiplicand) and (ii) multiplying by a figure (the multiplier) representing the present capitalised value of future payments. The multiplier is derived from the Ogden Tables, which contain actuarial discount factors reflecting mortality, the discount rate, and contingencies other than mortality (e.g. risk of unemployment).

The discount rate, set by the Lord Chancellor under s 1 Damages Act 1996, was 2.5% from 2001 to 2017, −0.75% in March 2017, −0.25% in 2019, and +0.5% from July 2024. A low or negative rate increases the multiplier, raising awards.

The remedies canon spans two centuries; this section addresses the foundational and frequently cited authorities.

Livingstone v Rawyards Coal Co (1880) remains the locus classicus for the compensatory principle. Lord Blackburn stated: 'where any injury is to be compensated by damages, in settling the sum of money to be given … you should as nearly as possible get at that sum of money which will put the party who has been injured … in the same position as he would have been in if he had not sustained the wrong'. The formula is endlessly repeated but conceals disagreement about whether 'position' is purely financial or includes subjective wellbeing.

H West & Son Ltd v Shephard (1964) confirmed that loss of amenity is assessed objectively: a claimant with permanent unconsciousness may still recover substantial general damages. The House of Lords rejected the argument that damages for loss of amenity require awareness. Lord Morris emphasised that the injury—the loss of capacity—exists independently of its perception. Critics, notably Lord Scarman in Lim Poh Choo, argued this produces a windfall; supporters replied that consciousness is irrelevant to objective loss.

Pickett v British Rail Engineering Ltd (1980) held that a living claimant may recover damages for earnings he will lose after his prospective death (the 'lost years'). The House of Lords accepted that the claimant's interest is in supporting dependants, so damages are calculated net of personal living expenses but gross of dependency support. Section 1(2)(a) Law Reform (Miscellaneous Provisions) Act 1934 now codifies this, though the estate cannot recover lost-years damages where death has already occurred.

Lim Poh Choo v Camden & Islington Area Health Authority (1980) arose from a catastrophic anaesthetic accident leaving the claimant with the mental capacity of a child. The award exceeded £220,000 (enormous in 1980). Lord Scarman delivered a powerful dissent arguing that unconscious claimants should receive much-reduced non-pecuniary awards, but the majority adhered to West v Shephard. The case remains the high-water mark for structured lump-sum awards before the introduction of PPOs.

Hunt v Severs (1994) addressed gratuitous care by the tortfeasor. The House of Lords held that the claimant could not recover the cost of care provided by the defendant himself; any award would be held on trust for the carer, and a tortfeasor cannot be both trustee and beneficiary. The trust analysis was doubted in Conner v Surrey CC [2010] EWCA Civ 286, but the outcome—no recovery where the tortfeasor is the carer—stands. The case illustrates the awkward intersection of restitution and compensation.

Wells v Wells (1999) revolutionised quantification. The House of Lords held that the discount rate must reflect the actual returns available to a prudent claimant investing in index-linked government securities (ILGS), not equities. A discount rate of 3% (then applicable) overcompensated, because ILGS yields were lower. The decision prompted enactment of s 1 Damages Act 1996 (originally enacted without a prescribed rate) and adoption of the Ogden Tables. It shifted the methodology from 'judicial impressionism' to actuarial science.

Vowles v Evans (2003) confirmed that the Ogden Tables are now the starting point, not merely a cross-check. Judges must explain departures. The case concerned a rugby referee injured in a collapsed scrum; the Court of Appeal applied the Tables mechanically, illustrating the rigour expected post-Wells.

Attorney General v Blake (2001), though a contract/fiduciary case, opened the door to gain-based remedies in tort. The House of Lords held that exceptionally, where compensatory damages are inadequate and the defendant's conduct egregious, the court may award an account of profits. Experience Hendrix LLC v PPX Enterprises Inc (2003) adapted the principle to intellectual property; subsequent cases (Devenish Nutrition Ltd v Sanofi-Aventis SA [2008] EWCA Civ 1086) explored its limits. Academic debate continues over whether tort's function extends to disgorgement or whether gain-based relief should remain confined to equity and restitution.

See practice questions below.

See further reading below.