EN-Test B 1 Remedies in the law of tort, Slides of Remedies

Download EN-Test B 1 Remedies in the law of tort and more Slides Remedies in PDF only on Docsity! EN-Test B 1 Remedies in the law of tort Although the tendency, over the centuries, has been the absorption of older self-help remedies into the law, there are situations today in which the law itself provides self-help remedies without the aggrieved person having to sue. Although the old forms of retaliation and 5 satisfaction for wrongs, such as feuds and duelling, have long been outlawed in the interests of preserving public order, there are still cases where 'such force as is reasonable in the circumstances' may be used by any person in the course of preventing a crime. This provision, now contained in section 3 of the Criminal Law Act 1967, replaces the old common-law rules about self-defence. There is no doubt, however, that the law places limits on the amount of 10 force which may legitimately be used in self-defence; it may not be out of proportion to the force used or threatened by the attacker. Again, in the law of tort, a trespasser on someone's land who refuses to leave on request may be ejected, using only reasonably necessary force; and the law of private nuisance provides that a sufferer from a nuisance may take steps to abate that nuisance. The best-known instance of this is perhaps the right of an occupier of land 15 to cut off branches of a neighbour's trees which overhang that land (although the cut foliage belongs to the neighbour). As Winfield has said, however, 'self-help is apt to be a perilous remedy, for the person exercising it is probably the worst judge of exactly how much he is entitled to do without exceeding his rights'. 20 Today, it is far more likely in cases of private nuisance that the aggrieved person will make an initial complaint to the local authority, for various statutes have provided that where waste disposal, atmospheric pollution, noise or unhealthy premises amount to a nuisance, the local authority will have either a power or a duty to take steps to regulate the activity in question or require that it ceases altogether. Where a local authority has no such power to intervene, or is 25 unwilling to do so, the plaintiff must ask a court to grant an injunction. Originally available only in equity, the injunction is now available in all courts, and its effect is that the defendant is ordered by the court to cease the activity complained of. Although perhaps most often thought of as a remedy for private nuisance, the injunction is available for all torts except false imprisonment and negligence, and is given at the court's discretion. Though clearly 30 useful and appropriate in many cases in tort, it is none the less true that the most frequently sought remedy in tort is not the injunction, but the award of damages. EN-Test B 2 Damages - financial compensation for loss suffered - is, historically, the only remedy which the old common law offered, and so the development of the rules governing awards of 35 damages is to a great extent the result of judicial deliberation in cases coming before them. In many cases, an award of damages, if adequately assessed, may be a wholly appropriate remedy, particularly where the loss sustained is of a material nature. In the law of contract, damages for loss through a breach of contract will usually be relatively easy to assess, especially if the parties have inserted into their contract a 'liquidated damages' clause, which 40 is an agreed estimate of the financial liability of each party in the event of a breach. In tort, however, the damages claimed by a plaintiff are 'unliquidated damages', or sums of money awarded at the court's discretion which are not predetermined. To award financial compensation in cases of personal injury, however, is quite a different 45 matter. It is highly artificial in the sense that money cannot actually compensate for the loss of a leg, an eye or a life. To be fair, the judges have long recognised this problem; none the less, they have the task of estimating a fair and just figure to compensate, as far as money can compensate, for a plaintiff's injuries. There is the distinction between 'general' and 'special' damages alleged by the plaintiff; the former being non-quantifiable damage such as the injury 50 itself, the latter being quantifiable damage such as loss of earnings, which must be specified by the plaintiff in the statement of claim. There are various heads of damage, moreover, within each category. Non-pecuniary damage, in cases of personal injury, will include, where relevant, separate sums of money in respect of pain and suffering, loss of amenity (awarded where a plaintiff, because of the injury, is no longer able to enjoy particular activities), and of 55 course the injury itself. Pecuniary loss, apart from loss of earnings, includes medical expenses (both past and future) and other incidental financial losses.