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REMEDIES IN TORT LAW


Prepared by instructor: Migdalia Castillo-Gerding, J.D., LL.M.

Every party who files a lawsuit seeks a re!edy. As defined in Blacks
Law Dictionary, a remedy is the means by which a right is enforced or
the violation of a right is prevented, redressed, or compensated. The
word remedy in a legal context has virtually the same meaning in a
medical context, namely, to cure. In a legal context remedy cures the
vilatin f a legal right.

The two main remedies available to the victim of a tort are legal
re!edies (da!ages) and equitable re!edies. In practical terms,
damages are the most important.

Damage is what happens to you (as a lawyer would say, what you
suffer) and damages are what the court gives you (as a lawyer would
say what it awards you) if you can prove that you have sufffered
damage. Damages are the amount of money that the defendant is ordered
to pay to the plaintiff (claimant), once he has been found liable. The aim
is to compensate the plaintiff (claimant) for the loss he has suffered; to
the extent that this is possible through financial means, the plaintiff
(claimant) is to be placed in the position he would have been in if the tort
had not occurred. Damages in tort law are quantified under two headings:
general da!ages and special da!ages.

General da!ages are da!ages that cannt be specified as f the day
f trial. An example of this can be projected future lost wages. General
da!ages alsc!pensate the plaintiff fr the nn-!netary aspects
f the specific har! suffered. This is usually termed pain and uffering
and loss of amenities. Examples of this include physical or emotional
pain and suffering, loss of companionship, loss of consortium,
disfigurement, loss of reputation, loss of enjoyment of life, etc... This is
not easily quantifiable, and depends on the individual circumstances of
the plaintiff.

Special da!ages are da!ages that can be ite!ized at the ti!e f the
lawsuit. Special da!ages c!pensate the plaintiff fr the quantifiable
!netary lsses suffered by the plaintiff. Examples of special damages
are extra costs, repair or replacement of damaged property, medical bills,
lost wages until the date of the trial.

Regarding the equitable remedies, an example to briefly illustrate the
application of injunctions instead of awarding damages is the following:

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the tort of trespass (which we do not cover in this course) is actionable
per se; this means that the plaintiff can bring an action against the
defendant without proof of any damage. If defendant repeatedly
trespasses onto plaintiffs property without causing any damage, the
plaintiff can bring an action for each trespass, but he will only be awarded
nominal damages. This remedy is of little use to him, as it does not stop
the defendant from trespassing. An injunction, on the other hand, will
order the defendant to stop; if he fails to comply he will be in contempt of
court, an offence punishable by imprisonment. This remedy is likely to be
much more effective in stopping the trespass than nominal damages.

Assessment of the amount payable is a little more complex in personal
injury cases. The damage suffered by the victim can roughly be divided
into pecuniary (!netary) and nn-pecuniary lss. Pecuniary loss
covers things like lss f earnings and !edical expenses. Non-pecuniary
loss covers pain and suffering and lss f a!enities, also called lss f
enjy!ent f life, referring to the reduction or loss of the plaintiffs
ability to do things that he used to do. Thus if, for example, he can no
longer participate in a sport or hobby, this will be included in the
assessment of damages.

Most awards of damages are intended to be purely compensatory
(c!pensatry da!ages) for physical harm to person or property. Tort
law also requires that the defendant compensate the plaintiff for pain and
suffering. The objective is to inde!nify the plaintiff, not to punish the
defendant. In rare cases, however, a tort plaintiff may also recover
punitive r exe!plary da!ages. Such damages are not designed to
compensate the plaintiff for the losses suffered at the hands of the
defendant, but rather to deter the defendant from the repeated commission
of wrongful conduct or to punish the defendant for some wrong
deliberately and flagrantly committed. Punitive damages are quasi-
criminal. Simple negligence does not support punitive damages. Rather,
the plaintiff must prove conscious wrongdoing, by clear and convincing
evidence. Sadly, there are cases in which plaintiffs can meet these
demanding standards. Cases awarding punitive damages are rare in
American tort law, and for this reason command press attention. Example
of such cases are Fisher v. Johns-Mansville Corp., (1986), where not
only did the defendant fail to warn users of the serious health hazards
associated with exposure to asbestos, it actually took affirmative steps to
conceal this information from the public. The other example is the
numerous tobacco cases.



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Lets take a closer look at different possible injuries, damages and what is
required:

1. Actual Physical Injury
In a negligence action a plaintiff has to show actual damages as part of
his cause of action. Unlike intentional torts, in negligence there are no
nominal damages awarded. In negligence cases damages are not
presumed as in intentional tort cases.

2. N!inal Da!ages
Nominal damages are very small damages awarded to show that the loss
or harm suffered was technical rather than actual. These damages will be
awarded for a technical violation of a contract or for an intentional tort to
vindicate the plaintiffs claim where no recoverable loss can be
established.

3. Types f Recverable Da!ages
Once the plaintiff has sustained some physical injury, he can recover
damages for all the harm he sustained which may include:
Medical expenses
Lost earnings (plaintiff missed work because he was hurt)
Pain and Suffering: includes both the amount of pain suffered up to
the time of trial and an estimate of future pain to be suffered for
the rest of ones life.
Future earnings: (taking into account inflation and interest rates)
Mental distress: which includes fear and shock when injured,
humiliation from disfigurement, impairment of activities, such as
sex, sports, etc..., anxiety over new life.
Property damages: which can be measured either by the cost to
repair the damaged item or, if repair is not possible, by the fair
market value of the destroyed property.

4. Da!ages That Are Nt Recverable
Punitive Damages: recoverable only in cases of gross negligence or
wanton or reckless conduct.
Attorneys fees: In addition to damages, the successful party is
entitled to be awarded his reasonable legal costs that he spent
during the case. This is the rule in most countries other than the
United States. In the USA, a party generally is not entitled to its
attorneys fees of for the hardships undergone during trial.



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5. Future Da!ages
Damages for lost earning/working capacity in the future because the
defendants actions lowered plaintiffs life expectancy or because
defendant injured/disabled plaintiff, etc... The jury is allowed to
approximate the value of damages. Testimony by experts is often used.

6. Taxatin Da!ages
Damages for personal injuries are TAX FREE, regardless of whether
damages are awarded by a court judgement or received as part of a
private settlement. Courts are split on issue of whether defendant is
allowed to tell the jury that damages are tax-free.

7. Cllateral Surce Rule
The amount of damages is not reduced if plaintiff could or did recover
compensation from other sources. (i.e., insurance, disability benefits,
social security). Even if the plaintiff receives free medical care, the
defendant has to compensate the plaintiff for the reasonable value of
those benefits. RATIONALE:
Plaintiff pre-paid to receive these benefits, (i.e., plaintiff paid
insurance premiums all his life so it is unfair to reduce his
damages.
Even if plaintiff did not pre-pay (i.e. free services) it is not right
to aid the defendant who is a tortfeasor.

8. Mitigatin f Da!ages
Plaintiff cannot recover damages for injuries he reasonably could have
avoided. There is a duty to minimize damages. Usually this applies to
conduct after the accident only. Some courts also look to conduct before
accident, i.e. did the plaintiff take adequate precautions. (Cases involving
the non-use of seat belts come under this heading.) Some courts will
reduce damages because of plaintiffs failure to take adequate
precautions.

9. Punitive Da!ages
Punitive damages, which are also termed exemplary damages in the
United Kingdom, are not awarded in order to compensate the plaintiff,
but in order to reform or deter the defendant and similar persons from
pursuing a course of action such as that which damaged the plaintiff.
They are awarded as a punishment, meaning that they are always in
excess of the actual harm suffered. Great judicial restraint is expected to
be exercised in their applications. In the United States, punitive damages
are subject to the limitations imposed by the due process of law clauses of
the Fifth and Fourteenth Amendment to the U.S. Constitution.

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Punitive damages are awarded if:
Defendant acted recklessly, wantonly or wilfully (in a negligence
action).
Products liability action: if the manufacturer knowingly sold a
defective product.

10. Statutry Da!ages
Statutory damages are laid down in law. Mere violation of the law can
entitle the victim to a statutory award. For example, the possible remedies
for misrepresentation in the United Kingdom are codified in the
Misrepresentation Act.

11. Equitable Re!edies
Equitable remedies are appropriate when an award of damages will not
lead to a fair result. In tort law, a court can issue an injunction to order a
party to stop doing something (a prohibitory injunction) or to do
something ( a mandatory injunction).