‘The award of damages in tort only partially restores to the claimant what he has lost. They are therefore inadequate.’

Discuss.

The main objective of damages in tort is to restore the claimant, as far as possible, to the position he was in before the tort was committed (Lim v Camden and Islington AHA). This question requires that you consider first the extent to which this is possible and then, what other, secondary, objectives damages may have.

Compensatory damages can only be quantified in financial terms. They can provide for loss of earnings, present and future, medical and care costs, and repair or replacement of property. Because damages are normally paid once, in a lump sum, estimation of future loss is likely to be inaccurate. Provisional damages are possible (Administration of Justice Act 1982, s 6) as are periodical payments(Damages Act 1996, s 2).If damage is physical, money cannot restore alost eye, limb, or life, as recognized in West v Shephard. Non-pecuniary damages, for loss of amenity orpain and suffering (describe these),cannot truly compensate for the damage and theformer is objectively calculated, even if the claimant is unaware.

Secondary objectives of damages are punishment, deterrence, and doing justice or righting a wrong. The ways in which the law of tort approaches these objectives should be discussed. In relation to the first, punitive damages and Rookes v Barnard should be outlined; for the second, the role of tort law in determining behavior should be outlined along with strengths and weaknesses (e.g. employers’ liability and product liability); finally, the doing of justice (eg illustrated with the torts actionable per se) and nominal damages, then the role of insurance should be cited. You should conclude as to whether or notdamages can be said to be inadequate, given the wider aims of tort.