Remedies and limitation

The most commonly sought type of remedy for torts, such as negligence, is the award of damages as compensation for what the claimant has lost. The other remedy which frequently arises in tort is that of the injunction, which might be relevant in a nuisance or defamation action, when the claimant hopes to obtain an order that the defendant cease a particular activity. This chapter focused on damages but also considered injunctions and briefly looked at other remedies. It should have enabled you to understand the basic principles of calculation and payment of tort damages; appreciate the effect of death upon tort compensation claims; and understand the basic rules regarding limitation periods in tort.

Damages in tort are primarily compensatory however they can also be nominal, contemptuous, aggravated and in some cases, such as defamation, exemplary or punitive. Calculation of compensatory damages may have a pecuniary element, such as payment for lost earnings or the repair of a car; and non-pecuniary such as payment for pain and suffering due to an injury. When judges are calculating damages there is often a necessary forward-looking or hypothetical element, for instance imagining how long the claimant is likely to work or to live. Damages are normally paid in a lump sum, but in some cases there is provision for periodical payment.

The injunction is the other main tort remedy, often seen in cases of nuisance (public or private) or trespass to land. It is an equitable remedy and so only available at the court’s discretion. The interim or temporary injunction, particularly in defamation cases, is rarely available especially since the introduction of the Human Rights Act 1998 s 12.

It is important to understand the effect of death upon actions in tort; particularly to compensation under both the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

Limitation law concerns the length of time available to a claimant to commence legal proceedings, following a loss. It is governed by statute and can be complicated procedurally; but it is not necessary to study this in great detail. Basically when personal injury is involved the time limit is three years, otherwise six years - except for defamation where the limit is one year. Some of these are extendable at the court’s discretion and there are special provisions for product liability and ‘latent damage’.