H418/02 - Damages, mitigation and injunctions

Compensation for proved loss

Winning a tort claim raises a further question: what remedy addresses the harm? Damages are a monetary award. Compensatory damages aim, so far as money can, to place the claimant in the position they would have occupied if the tort had not occurred.

In Knauer v Ministry of Justice (2016), the Supreme Court reaffirmed full compensation: neither more nor less than the legally recoverable harm. Money cannot literally restore a lost life or undo pain, and future losses are uncertain, but the aim remains compensation. The case concerned dependency losses after a death caused by asbestos exposure; its particular calculation issue does not make every tort award a dependency claim.

The claimant must prove loss and link it to the tort. The established causation and remoteness rules still restrict recovery. A sympathetic description of hardship does not remove those requirements. Equally, loss is not limited to bills already paid.

Loss of amenity means the loss of ordinary enjoyment or abilities, such as being unable to pursue a former hobby. “General” does not mean every item must be non-financial: future earnings are financial but require assessment. Avoid double counting the same loss under two labels.

Original example: Priya suffers a negligently caused wrist injury. She loses £1,600 in earnings and reasonably spends £400 on treatment. Those proved past losses total £2,000. A separate award may address pain and inability to play the violin. Future earnings require evidence of continuing impact; the court cannot simply assume that her whole career is lost. Damages normally compensate her rather than fine the defendant according to its wealth. Any contributory-negligence reduction is then a separate issue affecting the recoverable award.

Reasonable steps to limit loss

Mitigation of loss prevents a claimant recovering losses that reasonable steps after the tort would have avoided. The expression “duty to mitigate” is shorthand: failing to mitigate does not give the defendant a separate claim against the claimant. It limits the damages recoverable.

The defendant must establish the unreasonable failure and the avoidable loss. Reasonableness depends on the claimant's circumstances at the time, including resources and practical options. The claimant need not choose perfectly with hindsight, take unreasonable risks or make unreasonable sacrifices. Reasonable mitigation costs can be recoverable; a sensible attempt is not disqualified merely because it fails.

Lagden v O'Connor (2003) illustrates the importance of actual resources. After negligent damage to his car, the claimant could not afford ordinary replacement-car hire and used credit hire. The House of Lords allowed the reasonable costs on the facts. A claimant cannot be criticised for failing to choose a cheaper option that was not realistically available. The case does not permit any charge the claimant chooses; need, reasonable cost and available alternatives still matter.