3. TORT.pdf

THE LAW OF TORT – SESSION 1 CONTENT  Introduction Nature of law of torts Types of torts General defenses Doctrines of joint tortfeasors and vicarious liability Limitation and survival of actions Remedies in tort Framework governing the award of damages Introduction A civil wrong for which...

THE LAW OF TORT – SESSION 1 CONTENT  Introduction Nature of law of torts Types of torts General defenses Doctrines of joint tortfeasors and vicarious liability Limitation and survival of actions Remedies in tort Framework governing the award of damages Introduction A civil wrong for which the remedy is a common law action for unliquidated damages’. The word damages is not the plural of the word damage but rather the monetary compensation awarded to a person (aggrieved party) whose private rights have been violated. Tortious liability arises from the breach of a duty primarily fixed by law i.e. common law or statute. This duty is towards persons generally. A person who commits a tort is known as a tortfeasor. TORT Rights Duties TORT RIGHTS DUTIES Driving a car Drive carefully Owning property Construction Writing books Constructing a dam Essentials of a tort Unlawful act by the defendant Legal damage to the plaintiff Unlawful damage must attract legal remedy Purpose of the law of Tort The general purpose of the law of torts is to protect people’s rights by allowing them to sue if their interests are invaded, threatened or harmed. NATURE OF TORT The nature of tort can be explained either by distinguishing it from other wrongs or by mentioning some of the elements which are found in tort and not in other wrongs. Nature of tort cont’d TORT CONTRACT duties are fixed by law by the parties the duty is towards persons generally Specific persons Doctrine of privity of contract does not Only parties to the contract can sue apply each other hence the doctrine of privity of contract In tort, the remedy is unliquidated damages both liquidated and unliquidated damages. In tort, the emphasis is more on torts of commission Omission Tort and Crime TORT CRIME Ends of justice is compensation Punishment Balance of probabilities Standard of proof is beyond reasonable doubt Plaintiff to prove case The burden of proving a criminal case infringement of civil rights belonging lies with the prosecution to an individual Community rights Parties are plaintiff and defendant Prosecution and the accused person Out of court negotiations - No compromises unless allowed by AG compromise Classification of torts Intentional torts which refer to deliberate acts that result in damage to other people e.g. trespass, deceit, fraudulent misrepresentation. Torts requiring negligence or fault arises where the defendant’s conduct is at least unreasonable e.g. the tort of negligence, private nuisance. Torts of strict liability which committed neither intentionally nor negligently. This may also arise under duties in contract or those imposed by statute. Relevance of malice and motive The law of torts does not usually concern itself with why the defendant behaved in the way they did, in other words, the motive for their actions. Malice and Motive A person carries out an A person who acts with act with malicious intent, the very best of they will not be liable if intentions in particular what they have done is circumstances will still be not unlawful. See case of held liable if the action is Bradford Corporation vs. unlawful e.g. entering Pickes another land - fire 3 circumstances where they are relevant Malicious prosecution Malicious falsehood In the tort of nuisance, some actions which are reasonable may become unreasonable if they are actuated by malice Relevance in insurance practice Insurance policies e.g. motor and fire, damage to property that is maliciously caused by persons other than the insured is covered. This in essence means that one may maliciously commit the crime of arson against the insured property and insurers will still provide compensation as long as it is not through the insured’s willful misconduct. DAMNUM SINE INJURIA Damnum sine injuria is a latin phrase which means causation of damage without violation of a legal right. It arises where there is actual and substantial damage or loss suffered by a person without violation of their legal rights. Purpose of maxim Determines whether one has a valid claim Where the maxim can apply Ordinary trade competition Lawful use of land Case of Bradford Corporation Injuria sine damnum Infringement of one’s legal rights without actual damage being suffered. In most cases an action in tort will succeed only where the claimant has suffered some form of injury, damage or loss. However, in some cases a tort may be actionable per se (actionable in itself). Defamation cases, trespass to land TYPES OF TORTS TORT OF NEGLIGENCE It has been defined as the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’. Omit to do what a reasonable man can do or do what a reasonable man cannot do Doing what a reasonable person cannot do A driver overtaking on the face of an oncoming vehicle Speeding in a crowded estate A doctor leaving tools of trade in one’s body following surgery County government leaving a manhole open in the middle of the road An employer not servicing plant and machinery Negligence Negligence is essentially negative in character. It is either a commission of a careless act or perhaps more accurately, it is the omission of an appropriate degree of care for the rights of others. Negligence is, essentially, a failure to take care in circumstances Essentials for negligence 1. A duty of care is owed Refer to case of Donoghue vs. Stevenson Essentials of Negligence 2. Breach of duty of care -Doing what a reasonable person cannot do -Standard used to determine Essentials of negligence Damage Foreseeability Causation The burden of prove and the doctrine of res ipsa loquitur The burden of proof lies with the person alleging negligence and normally it is the plaintiff. It is based on the principle that ‘he who asserts must prove’. The onus of proof is on the plaintiff throughout the proceedings to show on a balance of probabilities that the defendant was negligent. The plaintiff must establish sufficient evidence to show that their injury or damage has been caused by the defendant’s negligence. Res ipsa loquitur This is when plaintiff’s burden of proof is relieved by the doctrine of res ipsa loquitur i.e. the thing speaks for itself (the facts speaks for themselves). Conditions which must be present for the doctrine to be successfully invoked include: The accident must be such that in the ordinary course of things, the event would not have occurred without negligence- e.g. that the road was clear and the visibility was good The object that caused the injury or damage was under the direct control of the defendant, their servant or agents That the accident would not have happened had the defendant exercised duty of care Negligent misstatement/advice This is where one is held liable for negligent advice that results in financial loss. This position is established in the case Hedley Byrne vs. Heller & Partners ltd where it was ruled that there can be liability for negligent misstatement which causes financial or physical loss. Case law Hedley Byrne rule has expanded in recent years and it is clear that the rule now applies not just to negligent 'advice' or 'statements' but to negligent professional work generally, including the drawing up of plans, the carrying out of surveys and similar activities. This has led to a number of professionals taking out professional indemnity insurance policy to guard against claims based on professional negligence Essentials for negligent professional work There exists a special relationship where it is reasonable for the claimant to rely on advice given The giver of advice could reasonably foresee that the advice is likely to be acted upon Advice is acted upon causing loss to the claimant NEGLIGENCE LIABILITY IN NEGLIGENCE - EXAMPLES Occupiers Liability An occupier is a person who has sufficient degree of control over premises to put him under a duty of care towards those who lawfully come upon the premises Occupiers are therefore held liable in negligence for defective premises. Even where the building itself is safe, the visitor may come into contact with unexpected hazards, such as dangerous machinery, vicious animals or toxic materials. Under the common law, there were special rules governing the liability of occupiers of land or buildings towards visitors who suffered injury because of defects in the premises or dangers which were present there. Cont’d The occupier’s liability in Kenya is governed by the Occupier’s Liability Act Cap. 24. The Act provides that the occupier owes a duty of care to visitors i.e. those who have been expressly or impliedly allowed to enter the premises. The duty is to ensure that the visitors are reasonably safe in using the premises for the purpose for which they were invited. The Act provides that the occupier may restrict or exclude liability by giving adequate warning. The occupier is generally not liable for incidents arising out of defective work of an independent contractor. Liability for defective products Product liability is also an important area of law because defective products are another common source of injury and damage. Examples of these products include defective electrical equipment which is a frequent cause of fire or bodily injury, those made for direct human consumption, such as foodstuffs or pharmaceuticals can result in serious illness if they are unsafe. A person who suffers as a consequence of the defect may sue under the tort of negligence but can also base their case on breach of contract. Article 46 (1) (d) of the constitution provides that consumers are entitled to compensation for loss or injury arising from defects in goods or services. Manufacturers may protect themselves against claims by consumers by purchasing product liability insurance cover. Employers Liability This part of the law of torts is concerned with the liability of the employer for injuries suffered by employees in the course of their employment. The liability may arise under common law (tort of negligence) or under statute. The rule is that an employer is vicariously liable for the torts committed by an employee in the course of their employment. This means that where a worker injures a fellow employee in the course of their job, or injures somebody who is not a fellow employee (such as a visitor to the premises), the victim can claim compensation from the employer, who is vicariously liable. The law that regulates injury to employees sustained in the course of duty is the Work Injury Benefits Act (WIBA). An overview of the Act will be given in chapter 8.  END OF SESSION 1 WELCOME TO SESSION 2 NUISANCE Nuisance is a wrong done to a man by unlawfully disturbing or inconveniencing him in the enjoyment of his property or in some case, in the exercise of a common right. FORMS NUISANCE PUBLIC NUISANCE PRIVATE NUISANCE This is an act or omission which materially This is where one uses their land in an affects or interferes with the enjoyment of a unreasonable manner causing right which all members of the community interference with another person’s use are entitled to. and enjoyment of his land. Examples include selling food not fit for Examples; roots of trees, dilapidated human consumption, keeping a disorderly buildings falling onto adjacent property, house, throwing fireworks in the street, running a brothel etc smells, noise, gas, smoke etc Public nuisance is a criminal offence. It is a tort Essentials for nuisance Damage The act that amounts to nuisance must be unreasonable Repetition Locality Sensitivity Defences in nuisance Prescriptive right: Where one has been carrying on the act for a period of over 20 years. This defence is not available in public nuisance. Statutory right: That the act being done is allowed by statute e.g. airports, railway stations Consent: Where one expressly or impliedly allows the defendant to make unreasonable use of property, they cannot complain unless he withdraws the consent Triviality: That the act was an insignificant act or one act that is temporary like an afternoon party Reasonableness: Where the defendant argues that the act that amounted to nuisance was lawful use of property Remedies Damages Injunction Defamation Defamation is injury to a person’s reputation. It is a false statement made about a person without lawful justification which tends to lower his reputation in the estimation of right thinking members of society. FORMS OF DEFAMATION LIBEL SLANDER Permanent form Temporary form Both a tort and a crime Spoken word and gestures pictures, drawings, cartoons, radio and It is a tort television broadcasting Prove of damage Actionable per se Where prove of damage may not be required in slander ◦Where the defendant alleges that the plaintiff is guilty of a crime punishable by imprisonment; ◦Where the defendant alleges that the plaintiff is suffering from a contagious disease; ◦That the plaintiff is unable to carry out his profession; and ◦If the plaintiff is a woman, the allegation that she is guilty of sexual immorality Essentials for defamation 1. There must be a defamatory statement exposes the plaintiff to hatred, contempt, ridicule and injures him in his profession or trade. It is a statement that injures one’s reputation and not dignity. Innuendo statements i.e. said innocently but with a hidden meaning may also be defamatory. 2. The defamatory statement must be referring to the plaintiff The person alleging defamation must prove that those who heard or read the statement believe it applies to them. It can refer to the plaintiff directly or by innuendo 3. There must be a publication of the defamatory statement Publication consists of making known the defamatory matter to someone else other than the person of whom it is written. A defamatory statement is not actionable unless it is published Damage need not be proved except in cases of slander Defences in defamation Truth Justification Fair comment Innocent intent/apology Privilege Absolute privilege Statements made in judicial proceedings Statements made in parliament Statements made between officers of state in the course of duty Fair and accurate reports in newspapers regarding judicial proceedings Papers published by order of parliament Qualified privilege Communications made between an advocate and a client Reports of judicial proceedings in newspapers on foreign countries Reports of public meetings/local authorities in newspapers Fair and accurate reports regarding proceedings in parliament Statements made in pursuance of a legal, moral or social duty e.g. an employer to employee Remedies 1. Damages. 2. Injunction Amount of damages depend on: the nature of the defamation, extent of the circulation of the defamatory material and the status of the parties. There are also mitigating factors that can determine whether damages can be awarded or not and these includes an apology, provocation, remoteness and where one had a bad reputation already STRICT LIABILITY It is a tort that is committed neither negligently nor intentionally. Rylands vs. Fletcher Facts; The defendant contracted an independent contractor to construct a water reservoir (dam) on his land. In the process of construction, the contractor discovered disused mine shafts which connected to the plaintiff’s land. After construction was completed, the water burst and flooded the plaintiff’s mining area causing damage. Principle: An occupier of land who brings and keeps upon it anything likely to do damage, if it escapes is bound at his peril to prevent its escape and is liable for all the direct consequences of its escape if he has been guilty of no negligence. Essentials of Strict Liability The must be a dangerous thing on one’s land; There must be an escape of the thing causing the damage; There must be a non-natural use of land. Examples of non-natural use of land include electricity wiring in a house, supply of gas in gas pipes in a dwelling house and water installations in a house.  Damage Defences in strict liability Consent of the plaintiff unless the defendant was negligent Default of the plaintiff i.e. where wilful or intentional act was the cause of damage Act of a stranger or third party Act of God Statutory authority TRESPASS This is an unlawful act committed with force and violence on the person, property or relative right of another. It is a civil wrong for which the remedy is a common law action for unliquidated damages. The violence may only be implied for example peaceful but wrongful entry to another’s land. Essentials of trespass Trespass must be deliberate (intentional) and not accidental The act of the defendant must be direct (hitting a person) and not consequential (dumping rubbish on a highway and another person’s car collides with the rubbish) Prove violation of legal rights even though trespass is actionable per se i.e. without prove of damage Forms of trespass 1. Trespass to person 2. Trespass to goods 3. Trespass to land 1. Trespass to the person 1. Assault conduct or threat to do violence on the plaintiff leading the plaintiff to fear or apprehension e.g. pointing a gun, waving a stick, use of a threatening gesture, holding a fist Cont’d 2. Battery This is actual application of force however slight e.g. hitting with a stick, shooting, touching in a rude manner, pouring water or spitting on another Defences to assault and battery Volenti non fit injuria – In sports or busy places where someone touches another unintentionally. However, where the defendant touched the other deliberately and mischievously, the defence will not stand Private defence-Right to defend oneself, family and property. Reasonable force should be applied Reasonable force-used to prevent forcible entry Legal authority-police officers Legitimate disciplinary action-teachers and parents Cont’d 3. False imprisonment This is where one imposes total bodily restraint on the claimant by unlawfully preventing them from going where they were going. No physical contact is necessary. It can happen in a prison, private house, a public street, a mental institution or a vehicle. There was total restraint on the claimant’s personal freedom and not partial restraint The detention must be unlawful 2. Trespass to goods direct and intentional interference with goods in the possession of another. This can be done by taking goods in the possession of another or direct and immediate injury to the goods e.g. cutting down trees belonging to another person, beating another person’s dog, scratching another person’s car. Forms of trespass to goods 1.Conversion 2.Detinue Examples of conversion One wrongfully sells goods belonging to another; Stealing goods of another that is, taking the property wrongfully; Wrongfully parting with goods of another by giving them to a third party; Receiving goods which belong to another; Wrongfully destroying property of another rendering it useless Detinue Detinue on the other hand refers to where a person wrongfully detains the goods belonging to another person and refuses to deliver the same on lawful demand. An action for recovery of the goods detained can be brought against the defendant  An example is when a bailee refuses to deliver goods after bailment Remedies for trespass to goods 1. Damages 2. Recaption 3. Order for specific restitution 3. Trespass to land This is direct and intentional interference with land in possession of another-unjustifiable interference with possession or through entry. Actionable without prove of damage Examples of trespass to land Entering another’s land Unlawfully placing or throwing material objects into the land –Case of Smith vs. Stone where two men threw another man onto the defendant’s land and this was held to amount to trespass Remaining on the land after the right of entry has ceased Using the right of entry for purposes other than that for which entry was allowed Doing acts which interfere with plaintiff’s conclusive right of possession Where one enters and abuses their right of entry and this will be treated as trespass ab initio Trespass to land as a criminal offence Enter and remain on another’s land, put up a structure, cultivates or grazes stock without the occupier’s consent Tampering with a fence Enter with intent to commit an offence, intimidate, annoy or insult Enter to steal stock or agricultural products Defences in trespass Prescriptive right (already explained under nuisance) Statutory authority Act of necessity e.g. to put out a fire That the act was involuntary without any negligence Remedies to trespass to land Damages Forcibly ejecting the trespasser using reasonable force Distress damage feasant-seize and retain the trespassing animals until the owner pays compensation Remedies to trespass to goods Recaption i.e. repossess the goods using reasonable force Order for specific restitution-where damages are not adequate and the goods are not available in the market Action for damages-award for full value of the goods and damage for inconvenience suffered Tort of passing off Protects the goodwill of a trader from a misrepresentation. It arises where damage is done to another person’s business interests through an act intended to deceive the general public to believe that the goods are of another reputable business organization. This is done through use of similar name, trade name, identification mark or description of the goods Remedies for passing off Damages Injunction Order for return of profits GENERAL DEFENCES 1. Volenti non fit injuria This means that no legal wrong is done to a person who consents or ‘to him who is willing, there can be no injury’. The claimant agrees to a deliberate act by the defendant which would otherwise been considered to be a tort if no consent had been given. Essentials Know the risk Consent to the engage Assume the risk Where the defence cannot apply Where one is under a moral and legal duty to protect life and property; Claims by passengers who are injured in car accidents but knew that the driver was drunk and, therefore, likely to drive in a negligent way; and Injuries arising out of and in the course of employment. 2. Private/self defence The law allows people to use reasonable force to defend themselves, their property and to defend other persons, such as members of their family or employees Reasonable force can also be used to prevent crime - proportional Intentional torts 3. Act of God Circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility'. Damage/loss may be caused by forces of nature and occur independent of human intervention e.g. earthquakes, storms, floods 4. Necessity Essentially it is a plea that the act which is alleged to be a tort was carried out in order to avoid a greater evil/damage/loss 5. Inevitable accident This is where the injury or damage sustained arises out of an accident that cannot be prevented by the exercise of ordinary care, caution or skill. It is an accident which occurs not arising out of anyone’s fault. 6. Statutory authority Statutory authority is a plea that the action which is alleged to be a tort is permitted by statute law. It is a common defence because, in the interest of society as a whole, Parliament often allows firms and individuals to engage in activities which have some harmful effect on others. An act authorized by statute however must be done carefully an action lies where it is done negligently. 7. Mistake This arises where a person acts under honest belief but mistakenly violates rights of another. An example can be where a person is arrested or injured under mistaken identity. It can be used in cases of malicious prosecution and false imprisonment. It can only be a mistake of fact and not a mistake of law where there is reasonable suspicion. 8. Accord and satisfaction Some claims are settled out of court even before proceedings commence. The settlement forms a binding contract between the parties. This is known as accord and satisfaction and releases the defendant from any further liability and if proceedings are commenced, it can be used as a defence. 9. Contributory negligence The most common in insurance claims Used where the plaintiff is partly to blame for the injuries or damage they have suffered at the hands of another. Section 4 (1) of the Law Reform Act. Cap. 26 provides that where a person suffers damage as a result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced having regard to the claimant’s share in the responsibility for the damage. Principles governing contributory negligence It must be stated in the plaint Can be fixed by the court or the parties The court must arrive at the total amount payable and subject it to contributory negligence End of session 2 Welcome to session 3 The doctrine of Joint tortfeasors This arises where the defendant wishes to reduce his liability by claiming that someone else should share responsibility for the losses suffered by the claimant. Joint tortfeasors It is provided for in Section 3 of the Law Reform Act. Cap. 26 of the laws of Kenya. Applies where two or more persons are responsible in one way or another for causing damage that requires compensation. Joint tortfeasors are jointly and severally liable i.e. any one of them separately or all of them together may be sued for the full amount of the loss. Options to the claimant Sue one defendant separately - jointly The method of seeking for contribution is through third party notice and taking out third party proceedings pleaded in a defence to enjoin the other tortfeasors as parties to the action. The amount recoverable must not exceed the amount awarded in the original suit. Sue all - Severally Cont’d The distribution of the financial loss among joint tortfeasors is known as contribution. The amount of the contribution will be such as the court finds to be 'just and equitable’ having regard to the extent of that person's responsibility for the damage in question and may amount to a complete indemnity Circumstances where doctrine may apply Road Construction Defective accidents cases products Hospital Surgery cases Doctrine of vicarious liability Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. It is a doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship to exercise such care as a reasonably prudent person would use under similar circumstances. It is guided by the principle that he who does an act on behalf of another does it himself (qui facit per alium facit per se). It is also referred to as imputed negligence. Relationships where the doctrine may apply 1.Partnership A partnership is a relationship which exists between persons carrying on business in harmony with a view of profit. All partners have unlimited liability for the debts of the firm to the extent of their wealth. Individual partners are agents of the firm and any contract entered into by one will bind all the others-they become. This is also the same where a tort is committed by one and all the others are held jointly and severally liable 2. Parents and children A child can sue and be sued in tort but can only conduct litigation through the next friend and defence through the guardian, parents will become vicariously liable under the following circumstances: Where a minor acts as the agent of the parent  If the minor act with the parent’s knowledge and consent Where a father fails to teach and supervise children on how to handle dangerous things that are likely to cause injury or damage 3. Principal and agent A principal is vicariously liable for the acts of his agent which he has authorized either expressly, impliedly or he has ratified. In insurance, whether an intermediary is an agent of the insured or the insurer will be discussed in the next chapter 4. Master and servant Generally a master is vicariously liable for the acts of his agents even where the servant acts outside his authority/instructions. The concept of vicarious liability is founded on the common sense that employees are people of meager means hence allowing injured persons to recover from employers. The servant must however commit the tort in the course of duty. Options to owner of a matatu where the conductor drives the vehicle and injures a third party Refuse to take Pay third party and Cap. 405 may responsibility. recover from compel insurer to Conductor salary of pay personally liable conductor Pay third party and Summary dismissal warn the conductor 5. Principal and independent contractor Generally a principal is not liable for the negligent acts of an independent contractor except in the following situations Exceptions  Where the contractor is employed to do illegal acts  Where the principal retains a measure of control over the contractor by providing him with men and machinery Where the principal is under statutory duty to perform work in a particular manner Where the principal is negligent in employing an incompetent contractor Where the contractor is employed to do lawful acts which involves strict liability Cont’d Extra hazardous work; If the principal requires a contractor to carry out work which is inherently dangerous or involves an unusual risk of damage or injury. The principal cannot escape liability on the grounds that the task was delegated to an independent contractor. Necessary interference; Where an act necessarily involved in interference with others property , a duty will be owed to the owner of that property in negligence, nuisance or trespass. Such a duty is non-delegable, and cannot be avoided by utilizing the services of an independent contractor. Work done on or near a highway; If work is done on or near a highway and that work is likely to endanger persons using the highway the principal will be liable if the event of injury or damage occurs. Survival of actions Note that under common law, a personal right of action dies with the person (action personalis moritur persona). However, this common law position has been modified by statute. Section 2 (1) of the Law Reform Act provides that all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provisions of the Law Reform Act Rights of action survive in favour of and against the estate of the deceased save for cases of defamation, adultery, seduction and inducing another person’s spouse to leave him; Proceedings must be instituted within six months from the time the estate has assumed representation; Exemplary damages cannot be awarded in favour of the estate of the deceased; and In case the case in favour of the estate, it is based on breach of promise to marry, such damages shall be limited to such damage Who can sue Those who are allowed to sue under the Act are the wife, husband, children, grandchildren, parents, grandparents, aunts, uncles but subject to proving a wrongful act, that the plaintiff suffered pecuniary damage and the proceedings must be brought within three years. Limitation of actions The law allows a person who is a victim of a civil wrong only a limited period of time within which to begin their action against the wrong doer. 1. To allow unlimited time would be unfair to the defendant since the possibility of legal action would hang over them indefinitely. 2. A very long delay would also make a fair hearing difficult since evidence tends to become less clear and less easily available (witnesses are either unavailable or unreliable) with the passage of time. Provisions of the Kenya Limitations Act Cap.22 Limitation is 3 years of the cause of action accruing. Where the damage is not discovered immediately, limitation period will start from the date of damage accruing Where the plaintiff is under a disability, time will start running from the time the disability ceases e.g. infancy Where the tort is a continuing one, a new cause of action arises from each repetition Where the cause of action is based on fraud/concealment, time will start running from when the fraud is discovered Note A claim filed outside the time limit is said to be statute-barred or out of time. Summons must also be served within twelve months from the date of issue otherwise they expire or cease to be in force unless renewed. Remedies in tort Damages Injunction Damages Damages mean financial compensation The object of an award of damages is to compensate the claimant by paying for the loss which the defendant has caused by their wrongful act. When assessing damages, the court will attempt to arrive at a sum of money which will, as far as possible, put the claimant in the financial position they would have enjoyed if the wrong had not been committed. Types of damages 1. General damages 2. Special damages Cont’d 3. Exemplary damages: The object of an award of damages is not to punish the wrongdoers but to compensate the claimant, punishment being a function of the criminal law. Exemplary damages are awards which exceed the loss which has actually been suffered, intended to punish the defendant for their conduct are occasionally awarded in tort actions. They may be awarded in defamation, trespass etc but is not available in negligence. 4. Nominal damages: Where a person has committed a tort which is actionable per se such as libel or trespass and no real loss has been caused to the claimant, the court may award a nominal damages (a token) sum to mark the fact that the defendant was in the wrong. Cont’d 5. Contemptuous damages: This is the award of a tiny sum to mark the court's low opinion of the claim of the claimant or record their disapproval of the claimant's conduct. Contemptuous damages may be awarded for any tort, whether actionable per se or not. 6. Aggravated damages: In certain torts (for example, assault or trespass) the court may award additional damages to reflect the fact that the motives and conduct of the defendant have aggravated the injury suffered, by injuring the claimant's sense of dignity or pride. Injunction An injunction is a court order commanding/preventing a person to do a particular thing. There are two types of injunctions i.e. a mandatory injunction and a prohibitory injunction. A mandatory injunction compels the defendant to do a particular thing such as knock down a wall which is blocking a right of way. A prohibitory injunction on the other hand is an order that refrains the defendant from doing a particular thing such as publish a libelous book Framework governing award of damages 1. Judicial 3.Nature of 2. Statute precedents damage 4. 5. Age Circumstances 6. salary