Damages in Tort

Compensatory Damages

The Purpose of Tortious Damages

The main purpose of damages in tort is compensatory: they put the claimant in the position they would be in had the tort not been committed:  Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174. 

How is Compensation Awarded?

Compensation typically constitutes a lump sum reflecting the claimant’s existing losses and an estimation of their future losses. Alternatively, the courts can order periodical compensation payments. These provide for future losses and can be varied over time to reflect changing circumstances: Damages Act 1996, s 2; Damages (Variation of Periodical Payments) Order 2005.

Common Damage Award Rules

Pain & Suffering

This is a form of non-pecuniary loss calculated according to the claimant’s subjective perceptions. This means that a claimant who is left unable to feel pain or suffering (such as by being in a coma) will not be awarded much, if any, damages: Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174. 

Loss of Amenity

This is a form of non-pecuniary loss which is assessed objectively, which means that it is irrelevant that the claimant is unable to perceive the loss: Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174. The Judicial College Guidelines for Personal Injury provide guidelines and brackets for the kinds of awards likely to be made with respect to different injuries.

 

Loss of Earnings

For ongoing, serious injuries future lost earnings are calculated using the multiplicands and multipliers in the Ogden tables (lump sum payments only). For children, average national earnings are used unless the child is likely to have entered (or was already in) a more lucrative career: Croke v Wiseman [1982] 1 WLR 71.

Lost Life Expectancy

Damages for lost earnings are based on the claimant’s life-expectancy prior to the accident: Pickett v British Rail Engineering [1980] AC 136. Deductions are made to reflect the savings made by not having to pay living expenses for himself in the lost years. 

Medical Care

The claimant can recover any medical costs incurred by him including the cost of private care: there is no requirement to mitigate by seeking only NHS treatment: Law Reform (Personal Injuries) Act 1948, s 2(4). Where care is provided gratuitously by another (other than the defendant), the claimant can recover the reasonable value of those services: Hunt v Severs [1994] 2 AC 350.

Deductions

Since damages must not provide a windfall, any savings resulting from the injury are deducted, such as saved travel costs from not working (Dews v National Coal Board [1988] AC 1), collateral benefits such as sick pay (but not insurance payments, pensions or charitable donations) (Hussain v New Taplow Paper Mills [1988] AC 514).

Effect of Death on Damages

Where a claimant is killed by the tort, losses accruing to their estate after death (including lost earnings) are irrecoverable. The exception is funeral expenses: Law Reform (Miscellaneous Provisions) Act 1934, s 1(2).

Nominal & Contemptuous Damages

Nominal Damages

Nominal damages can be awarded in torts which are actionable per se without proof of any loss. This includes assault, battery and false imprisonment.

They are available if the claimant has not suffered any actual loss. Nominal damages are a small sum of damages (usually a few pounds or less) awarded to recognise that the claimant’s rights have been infringed: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.

Contemptuous Damages

Contemptuous damages are awarded when the claimant has technically succeeded but their conduct is seen as contemptuous by the court. They are very rare, particularly outside of defamation actions. Contemptuous damages usually result in the claimant being ordered to pay the defendant’s costs, despite winning.

Exemplary and Punitive Damages

Are Exemplary/Punitive Damages Available?

Ordinarily, the purpose of tort damages is not to punish the defendant. However, in rare cases exemplary damages may be granted to do just that. Exemplary damages are granted in the following cases: Rookes v Barnard [1964] AC 1129

1. Oppressive, arbitrary or unconstitutional actions by the government or any public body or servant;
2. Where the defendant has committed the tort intending to make a profit or gain for himself at the claimant’s expense; and
3. Where exemplary damages are authorised by statute.

The Court of Appeal has held that exemplary damages are even available where the defendant is only liable vicariously where the primary tortfeasor falls into one of the three categories above: Rowlands v Chief Constable of Merseryside Police [2007] 1 WLR 1065. Exemplary damages are not available if a deceased person’s estate is the claimant, however: Law Reform (Miscellaneous Provisions) Act 1934, s 1(2).

At one time it was held that exemplary damages were unavailable in negligence, nuisance and Rylands v Fletcher: AB v South West Water Services [1993] QB 507. This was overruled by the House of Lords in Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122. The House of Lords suggested that some causes of action may be excluded, but did not state which. 

Calculating Exemplary Damages

When calculating exemplary damages, the courts may take into account all circumstances of the case. This includes the means of the parties (which is not normally relevant to assessing compensation). Exemplary damages should be calculated moderately. They should not amount to greater punishment than if the defendant were sentenced under criminal law: Rookes v Barnard [1964] AC 1129. A rough guide adopted by the courts is to grant triple the total of any compensatory and aggravated damages: Thompson v Commissioner of Police for the Metropolis [1998] QB 498.   

Restitutionary Damages?

Are Restitutionary Damages Available in Tort?

At one time it was thought possible to obtain restitutionary damages in tort in some cases: Attorney-General v Blake [2001] 1 AC 268. Restitutionary damages entitle the claimant to profits made by the defendant. Notably, the defendant’s profits are not a ‘loss’ incurred by the claimant, and so are unavailable under normal principles.

These damages were said to be available when other measures were inadequate and ‘practical justice’ demanded a remedy. The damages were calculated as the hypothetical licence fee which the claimant would have charged to permit the tort.

However, the Supreme Court in Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 made clear that the kind of damages in issue in Blake were actually compensatory in nature and did not entitle the claimant to the defendant’s profits. As such, the position is now that Blake-style damages are available whenever:

1. The claimant had an economically valuable right, such as a property right, intellectual property right or an interest in confidence; and
2. A hypothetical licence fee is an appropriate estimation of the damage caused to the claimant by that right being infringed.