Remedies in tort

Tort damages aim to restore the claimant to the position she would have occupied had the tort not been committed (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25). This compensatory principle—restitutio in integrum—distinguishes tort from contract (which protects expectation) and governs all remedies save narrow exceptions. The counterfactual is the status quo ante: where the claimant stood before the wrong, not any promised future. Awards are once-and-for-all lump sums, though periodical payment orders (PPOs) and provisional damages provide limited exceptions. The principle masks complexity in valuation (how to price pain or lost years), timing (discount rates, future uncertainty), and collateral benefits (which receipts offset damages). Courts achieve restoration through: (i) pecuniary damages for financial loss; (ii) non-pecuniary damages for pain, suffering and loss of amenity; (iii) injunctions where damages inadequate; (iv) rarely, gain-based awards in exceptional cases (Attorney General v Blake [2001] 1 AC 268).

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25: Lord Blackburn established the compensatory principle—damages should 'as nearly as possible' restore the claimant's pre-tort position. Remains the foundational statement cited in every damages assessment.

H West & Son Ltd v Shephard [1964] AC 326: Loss of amenity assessed objectively—unconscious claimants recover substantial damages despite lacking awareness. Confirms damages compensate the deprivation of faculties, not subjective experience.

Wells v Wells [1999] 1 AC 345: Discount rate must reflect returns achievable by risk-averse claimants investing in index-linked government securities, not equities. Revolutionised quantification by mandating actuarial rigour over judicial impressionism.

Pickett v British Rail Engineering Ltd [1980] AC 136: Living claimants can recover earnings for 'lost years' (shortened life expectancy), calculated net of personal expenses. Prevents tortfeasors benefiting from killing rather than injuring.

Coventry v Lawrence [2014] UKSC 13: Injunctions in nuisance governed by equitable discretion, not rigid Shelfer criteria. Courts balance adequacy of damages, proportionality, public interest, and defendant's conduct.

Courts follow this structure: (1) Establish heads of damage—special damages (quantified pre-trial losses), general damages (future pecuniary loss, PSLA). (2) For future losses, apply multiplier/multiplicand method: identify annual loss (multiplicand), multiply by Ogden Tables factor incorporating discount rate and mortality. (3) Assess PSLA using Judicial College Guidelines brackets. (4) Consider mitigation—has claimant unreasonably failed to minimise loss? Burden on defendant. (5) Apply collateral benefits rules—deduct sick pay from tortfeasor, ignore insurance/charity, recoup state benefits under 1997 Act. (6) For fatal accidents, separate estate claims (pre-death losses under 1934 Act) from dependency claims (post-death support under 1976 Act). (7) Consider PPOs for catastrophic injuries—court must address under s 2 Damages Act 1996. (8) In nuisance, weigh injunction versus damages using Coventry factors. Injunctions require inadequacy of damages and proportionality.

Confusing general/special damages: Special = quantified pre-trial losses; general = future losses and PSLA. Never call future earnings 'special damages'. Missing multiplier calculation: Show multiplicand × multiplier = total. State discount rate assumption. *Misapplying West v Shephard: Explain why unconsciousness doesn't bar PSLA—objective assessment of lost faculties. Ignoring mitigation: If facts suggest unreasonable refusal (surgery, job), discuss. Claimant needn't take risks. Fatal accidents muddle: Estate gets pre-death losses (1934 Act); dependants get future dependency (1976 Act). Bereavement only for spouses/parents of minors. Overlooking PPOs*: Mention for catastrophic injuries with ongoing care needs.