Remedies in Tort

TL;DR

When someone commits a tort against you, remedies are what the law provides to put things right. The primary goal is usually to compensate you for your losses, mainly through money (damages). Sometimes, a court might order the tortfeasor to do or stop doing something specific.

1. The Mental Model

Think of remedies as the legal tools available to fix the harm caused by a tort. If someone wrongs you, remedies are how the legal system tries to restore you, as much as possible, to your position before the wrong happened.

2. The Core Material

When you've suffered a tort, you're looking for a way to address the harm. The main remedies are damages (money) and injunctions (court orders to act or stop acting).

Damages: The Monetary Fix

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Damages are the most common remedy. They're about putting a monetary value on your loss. The fundamental principle is restitutio in integrum, meaning "restoration to original condition." The aim isn't to punish the tortfeasor (that's the role of criminal law), but to compensate you.

Types of Damages

1. Compensatory Damages: These are the bread and butter. They cover your actual losses.

   • Special Damages: These are quantifiable, specific financial losses up to the date of the trial. Think lost wages, medical bills, property repair costs. You need to prove these with receipts or clear calculations.
   • General Damages: These are non-quantifiable losses, often continuing after the trial or non-economic. This includes future lost earnings, pain and suffering, loss of amenity (loss of enjoyment of life), and future medical expenses. The court estimates these based on previous similar cases.
     • Pain and Suffering: For physical and mental distress.
     • Loss of Amenity: For inability to enjoy life as before (e.g., can't play sports, loss of a limb).
     • Future Pecuniary Losses: Future lost income, future care costs.

2. Nominal Damages: Awarded when a tort occurred, but you suffered no actual financial loss. It's a symbolic sum (e.g., $1) acknowledging your legal right was violated.

3. Aggravated Damages: Awarded when the tortfeasor's conduct was particularly humiliating, insulting, or malicious, causing you additional emotional distress beyond the primary injury. They compensate for this extra suffering.

4. Exemplary (Punitive) Damages: These are rare in tort. They're designed to punish the tortfeasor and deter others, not just compensate you. They're usually only awarded in specific situations, such as oppressive or unconstitutional government action, or where the tortfeasor profited from their wrongdoing beyond normal compensation.

Injunctions: Court Orders

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An injunction is a court order telling someone to do something or, more commonly, to stop doing something. They are an equitable remedy, meaning they are discretionary and only granted when damages aren't an adequate remedy.

1. Prohibitory Injunction: Orders someone not to do something (e.g., stop trespassing, stop publishing defamatory material).
2. Mandatory Injunction: Orders someone to do something (e.g., remove an obstruction).
3. Interlocutory/Interim Injunction: A temporary injunction granted before a full trial to preserve the status quo until the case is fully heard.
4. Perpetual/Final Injunction: A permanent injunction granted after a full trial.

Here's a diagram showing the decision process for remedies:

graph TD
    A["Tort Committed?"] --> B{Damages Adequate?};
    B -- Yes --> C["Award Damages"];
    B -- No --> D{Injunction Appropriate?};
    C --> E["Compensatory (Special & General)"];
    C --> F["Aggravated"];
    C --> G["Nominal"];
    C --> H["Exemplary (Rare)"];
    D -- Yes --> I["Grant Injunction"];
    D -- No --> J["No Injunction"];
    I --> K["Prohibitory"];
    I --> L["Mandatory"];
    I --> M["Interlocutory"];
    I --> N["Perpetual"];

Other Minor Remedies

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• Restitution: Sometimes ordered to force the tortfeasor to return ill-gotten gains.
• Self-Help: In very limited situations, you might be able to take reasonable steps to prevent a tort or mitigate harm, like removing a trespassing object. This is risky and rare.

3. Worked Example

Let's say you're hit by a negligent driver. You suffer a broken leg, can't work for six months, and your car is totaled.

1. Special Damages:

   • Medical bills: $10,000 (hospital, physical therapy)
   • Lost wages for 6 months: $30,000 (proven by pay stubs)
   • Car repair/replacement: $15,000 (mechanic's estimate/blue book value)
   • Total Special Damages: $55,000

2. General Damages:

   • Pain and suffering: Judge might award $20,000 based on similar cases for a broken leg and recovery.
   • Loss of amenity: You loved running marathons but now have a permanent limp. Judge might award $15,000 for this.
   • Total General Damages: $35,000

3. Total Compensatory Damages: $55,000 (Special) + $35,000 (General) =