What remedies are available to a successful claimant in tort, and how are damages assessed?
Remedies in tort: compensatory damages (general and special, the aim of restoring the claimant), the principle of mitigation, lump sum and structured settlements, and injunctions.
Remedies in tort for WJEC A-Level Law Unit 2. Covers compensatory damages and the aim of restoring the claimant, the distinction between general and special damages, pecuniary and non-pecuniary loss, mitigation, lump sums and structured settlements, and injunctions.
Reviewed by: AI editorial process; not yet individually human-reviewed
Have a quick question? Jump to the Q&A page
Jump to a section
What this dot point is asking
This dot point covers the remedies available to a successful claimant in tort. The principal remedy is damages, which are compensatory, and you need to explain the aim of restoring the claimant, the distinction between general and special damages, the duty to mitigate, and how awards are paid (lump sum or structured settlement). You also need to explain the equitable remedy of the injunction, important in nuisance. WJEC tests accurate explanation and, in scenarios, advice on what a claimant can recover.
The answer
Compensatory damages and the aim
General and special damages
A useful overlapping distinction is between pecuniary loss (financial, such as lost wages and expenses) and non-pecuniary loss (non-financial, such as pain and loss of enjoyment of life).
Mitigation and how damages are paid
The claimant must mitigate their loss: take reasonable steps to reduce it, and they cannot recover for losses that could reasonably have been avoided. Damages are usually paid as a lump sum, a single payment assessed once. For serious injuries requiring long-term care, a structured settlement (periodical payments) provides regular payments, which avoids the risk of a lump sum running out and removes the difficulty of accurately predicting how long care will be needed.
Injunctions
An injunction is an equitable remedy and therefore discretionary. It may be prohibitory (ordering the defendant to stop doing something, for example to cease a nuisance) or mandatory (ordering the defendant to do something). Injunctions are particularly important in nuisance, where the claimant usually wants the interference stopped rather than just compensated.
Examples in context
The split between special and general damages drives every personal injury calculation. Suppose a claimant injured by a defendant's negligence is off work for a year and needs ongoing physiotherapy: the lost wages and physiotherapy bills incurred up to trial are special damages, calculated to the penny, while the pain and suffering, loss of enjoyment of hobbies, and any continuing loss of earning capacity are general damages, which the court must estimate. Mitigation then trims the award: if the claimant unreasonably refused a recommended treatment that would have shortened the recovery, the avoidable extra loss is not recoverable. For very serious injuries the choice of payment matters: a structured settlement of periodical payments protects a claimant who needs lifelong care from the risk that a single lump sum, based on an uncertain prediction of life expectancy, will run out. In nuisance, by contrast, the claimant's real goal is usually an injunction to stop the interference, not merely money.
Try this
Q1. What is the aim of compensatory damages in tort? [2 marks]
- Cue. Restitutio in integrum: to put the claimant, so far as money can, in the position they would have been in had the tort not occurred.
Q2. Give one difference between special and general damages. [2 marks]
- Cue. Special damages are quantifiable pre-trial losses; general damages are non-quantifiable losses including pain, suffering and future loss.
Q3. Explain the remedies available to a successful claimant in tort. [12 marks]
- What the marker wants. Compensatory damages and their aim, general and special damages, mitigation, lump sums and structured settlements, and the equitable, discretionary injunction.
Exam-style practice questions
Practice questions written in the style of WJEC exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
WJEC 201812 marksExplain the remedies available to a successful claimant in the law of tort.Show worked answer →
An AO1 task rewarding the main remedies and how damages are assessed.
Damages are the principal remedy, and are compensatory: the aim is to put the claimant, so far as money can, in the position they would have been in had the tort not occurred (restitutio in integrum).
Distinguish general damages (for losses that cannot be calculated precisely, such as pain, suffering and loss of amenity, and future loss of earnings) from special damages (for losses quantifiable up to trial, such as lost earnings to date and medical expenses).
Explain mitigation: the claimant must take reasonable steps to reduce their loss and cannot recover for avoidable losses.
Explain how the award is paid: usually a lump sum, but a structured settlement (periodical payments) can provide regular payments for ongoing care.
Injunctions are an equitable remedy, important in nuisance, ordering the defendant to stop (prohibitory) or to act (mandatory). Strong answers note injunctions are discretionary.
WJEC 202012 marksExplain how damages are assessed in a personal injury claim and the duty to mitigate.Show worked answer →
An AO1 task rewarding the assessment of damages and the mitigation principle.
State the aim of compensatory damages: to restore the claimant to their pre-tort position so far as money can (restitutio in integrum).
Explain the categories: special damages (quantifiable pre-trial losses, such as lost earnings and expenses to date) and general damages (non-quantifiable losses, including pain, suffering and loss of amenity, and future losses such as future earnings and care costs).
Explain mitigation: the claimant must take reasonable steps to minimise the loss and will not recover for losses that could reasonably have been avoided.
Note that damages are usually paid as a lump sum but may be a structured settlement (periodical payments) for long-term needs. Strong answers note the difficulty of accurately predicting future loss.
Related dot points
- Negligence: establishing a duty of care, breach of that duty by falling below the standard of the reasonable person, and damage that is factually caused and not too remote.
Negligence for WJEC A-Level Law Unit 2. Covers the three elements of duty of care (Caparo), breach of duty by the reasonable person standard with risk factors, and damage through factual causation (but for) and legal causation (remoteness), with leading cases.
- Occupiers' liability: the duty owed to lawful visitors under the Occupiers' Liability Act 1957 and the duty owed to trespassers under the Occupiers' Liability Act 1984, including the special rules for children and defences.
Occupiers' liability for WJEC A-Level Law Unit 2. Covers the duty to lawful visitors under the Occupiers' Liability Act 1957, the special rules for children and skilled visitors, the duty to trespassers under the Occupiers' Liability Act 1984, and the available defences, with cases.
- Nuisance and Rylands v Fletcher: liability in private nuisance for unlawful interference with the use and enjoyment of land, the relevant factors and defences, and strict liability under the rule in Rylands v Fletcher.
Nuisance and Rylands v Fletcher for WJEC A-Level Law Unit 2. Covers private nuisance as unlawful interference with the use and enjoyment of land, the factors of reasonableness, the defences including prescription and statutory authority, and the strict liability rule in Rylands v Fletcher.
- Vicarious liability: the requirements that there is a relationship akin to employment and that the tort was committed in the course of employment, including the close connection test and frolics of one's own.
Vicarious liability for WJEC A-Level Law Unit 2. Covers the requirement of an employment or akin relationship, the distinction between employees and independent contractors, the course of employment and the close connection test, frolics of one's own, and the justifications for the doctrine.
- Defences in tort: contributory negligence as a partial defence, consent (volenti non fit injuria) and illegality as complete defences, and necessity, including their requirements and effect.
Defences in tort for WJEC A-Level Law Unit 2. Covers contributory negligence as a partial defence reducing damages, the complete defences of consent (volenti) and illegality, and necessity, with their requirements, effect and leading cases.
Sources & how we know this
- WJEC GCE AS/A Level Law specification (from 2017) — WJEC (2017)