Principles of Tort Law

INTRODUCTION

This chapter considers the principal categories of damages which typically arise for discussion (if not for application) in the tort of negligence: compensatory damages (including those awarded in the event of a tortiously-caused death); aggravated damages; exemplary damages; nominal damages; and restitutionary damages. The chapter does not purport to give an exhaustive treatment of the subject of damages in negligence, nor does it cover the manner in which damages may be paid (e.g., via lump sums, structured settlements and periodic payments). Instead, it focuses on key heads of damage, terminology and some of the controversial issues associated with these categories.

Injunctive relief may also be sought for the tort of negligence. This remedy, however, is more frequently associated with property-based torts (such as Private Nuisance), and readers are referred to relevant discussion of different forms of that remedy in Chapter 16.

The remedy of an apology remains under-utilised in English law to date. In 2006, the NHS Redress Act was enacted, under which the Secretary of State can, by regulation, establish a scheme for the purpose of enabling redress to be provided to patients without recourse to civil proceedings. Certain types of ‘qualifying liabilities in tort’ can be covered by a scheme, viz: those arising from a breach of a duty in relation to the diagnosis, care or treatment of a patient, or from any act or omission by a healthcare professional. ‘Redress’ under the Act includes an apology. However, no scheme has yet been established. Otherwise, in litigation generally, the Irish High Court explained the problem well in O'Connor v Lenihan – where C failed in their attempt to sue D for harvesting the organs of their two deceased children without permission, because C had suffered no recognisable damage: ‘no award of damages would be even half as useful in easing their feelings of anger and distress as a forthright and sincere and appropriately tendered apology … But the problem is that our legal system is not conducive to such steps being taken by [D] … once fault might be seen to be acknowledged by such an apology’. Of course, where D admits liability in negligence, an apology may be issued to C (as occurred, e.g., in Ellison v Univ Hosp of Morecambe Bay NHS Foundation Trust).