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EFFECTIVENESS OF DAMAGES AS A REMEDY THAT PUTS THE CLAIMANT BACK TO THE PRE-TORT POSITION

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EFFECTIVENESS OF DAMAGES AS A REMEDY THAT PUTS THE CLAIMANT BACK TO THE PRE-TORT POSITION

Introduction

 

Torts are a branch of private law that includes wrong, doings other than the reach of a binding agreement that an individual or a company perpetrates against an individual or another entity.[1] They are defined under Civil and Common Law as a breach of a duty to an individual or any other entity that may carry civil liabilities in the form of an order or payment for damages incurred by a plaintiff. Breaches in tort laws are different from those that are bound by a contract. A plaintiff is privileged to pay for damages if they demonstrate to the court that the defendant had a duty to behave in a certain manner which they failed to adhere to leading or causing the plaintiff to incur damages. In a civil case, the plaintiff files a case against the defendant for a claim.

The damages awarded to plaintiffs under Tort laws are remedies in the form of monetary payments that are paid by the defendant. This is done as a form of compensation and remedy for the losses, injuries, or suffering incurred by the victim. The damages awarded by a court in various forms.

This paper seeks to analyze trespass and negligence tort Laws and the effectiveness of awarding damages to the party that incurs injuries.

Compensatory remedies are one of the forms of damages that are to the plaintiff. This award is also called legal remedies are the most popular of the forms of tort remedies that are awarded to plaintiffs. This remedy is awarded as monetary payment paid by the defendant to compensate the plaintiff of a loss incurred. In this case, the damage restores the plaintiff to the economic state that is as close as possible to that they were in before tort was incurred.

The effectiveness of damages awarded for violation of torts depends on the injuries incurred. Torts that are conduct-labeled such as libel, trespass to the person, and nuisance may not attract effective damages when compared to negligence torts. The internal structures of tort laws and damages awarded to plaintiffs are dependent on whether the tort is actionable per se. Tort such negligence and nuisance are actionable only on the proof of damage.

 

Livingstone v. Rawyard Coal Co: February 13, 1880

 

The case brought before Lord Blackburn and Lord Hatherley was an appellant case filed by the Plaintiff Livingstone who was an owner of a one-and-a-half acre of land. Miners from Rawyard Coal Company trespassed through the surface of the land with houses and cottages. Beneath the land was coal deposits. In lord Blackburn’s statement, any compensation of injuries for damages incurred by the plaintiff must be settled to the closest possible state to the position where the injured party would have been if the tort was not violated[2]. The plaintiff underwent losses after the company went ahead with the unauthorized mining of coal that was underneath the land. The plaintiff also lost property that was on the surface of the land. According to the court, the value of losses is equal to the amount that the coal was sold. The court cited Jegon V. Vivian Law Rep 6 in which an individual is entitled to the same amount of money that was furtively taken from them[3]. The appellant was awarded damages for the coal that was removed beneath his land without consent.

According to Visscher[4], economic analysis of such a case shows that damages minimize the cost of primary injury as well as secondary injury. However, the full amount of damages incurred, which goes beyond financial losses cannot be compensated by damages. Despite getting compensation for the land that was destroyed and the coal, the plaintiff did not return to the original utility curve. This is because of the material damaged was not repaired since the land was of little use after the coal-mining process. In this case, damages did not compensate the plaintiff fully. Despite paying for the damages, the injurer did not take the plaintiff to the place he found him as the particular piece of land was lost along with its value.

 

Donoghue v Stevenson 1932

 

The case is popularly known as the “Paisley Snail” and involves the negligence area of tort law. In the case, the plaintiff, Mrs. Donoghue visited a café in paisley in the company of her friend on 26th August 1928. Her friend ordered a bottle of ginger beer and ice cream. The beer was supplied by Stevenson, the defendant, for sale and consumption to members of the public. The beer was in a bottled in a dark glass which attracted no suspicion of its content. The pursuant drunk a fraction of contents before her friend took it. While trying to lift the tumbler, a decomposing snail floated out of the tumbler. The pursuant filed a case against David Stevenson, the water manufacture on 9th April 1929. The pursuant suffered a series of illnesses including abdominal pain and severe gastroenteritis diagnosis that led to a hospital admission at Glasgow Royal Infirmary.

According to Donoghue V. Stevenson [5] the beer manufacturer owed the plaintiff a duty of care to ensure the safety of consumable products. The failure to act in a specific way led to injuries. The court ruling established negligence as part of civil tort law. The plaintiff pursued the case on in forma pauperis. The court established that businesses are obliged to the duty of care to customers. The plaintiff was awarded £200 in damages.

In such a case, the injurer is forced to pay the plaintiff an amount that is legally due care incentive. The harm caused by the plaintiff which included future losses caused by future risks from the illnesses remains to be a debate among scholars. According to Castle[6], the injury is only to pay for the losses at the present value. This puts the negligence victims being under-compensated. In negligence tort cases involving injuries, the loss of chance, future profits can be limited when the damages are calculated based on their current economic output. Courts have the supreme mandate of regulating damages. In the case of Donoghue V. Stevenson, the courts reduced the amount from £500 that was originally claimed by the pursuant to £200[7]. This limitation of damages can see the courts serving victims especially when the damage is deemed too burdensome for the defendant. In order for damages to be effective in negligence torts, the damage should be as high as possible to cover due care and mitigate losses.

 

 

Bibliography

 

Castle R, ‘Lord Atkin and the Neighbour Test: Origins of the Principles of Negligence in Donoghue v Stevenson’ (2003) 7 Ecclesiastical Law Journal 210

‘Donoghue v Stevenson [1932] UKHL 100 (26 May 1932)’ <https://www.bailii.org/uk/cases/UKHL/1932/100.html> accessed 28 July 2020

‘Jegon v Vivian: 1871’ (swarb.co.uk, 11 March 2019) <https://swarb.co.uk/jegon-v-vivian-1871/> accessed 28 July 2020

‘Livingstone v Rawyards Coal Co: HL 13 Feb 1880’ (swarb.co.uk, 9 April 2019) <https://swarb.co.uk/livingstone-v-rawyards-coal-co-hl-13-feb-1880/> accessed 27 July 2020

Ronquillo Y, Pesce MB and Varacallo M, ‘Tort’, StatPearls (StatPearls Publishing 2020) <http://www.ncbi.nlm.nih.gov/books/NBK441953/> accessed 27 July 2020

Visscher L, ‘Rotterdam Institute of Law and Economics (RILE) Working Paper Series’

 

[1] Yasmyne Ronquillo, Michael B Pesce, and Matthew Varacallo, ‘Tort’, StatPearls (StatPearls Publishing 2020) <http://www.ncbi.nlm.nih.gov/books/NBK441953/> accessed 27 July 2020.

[2] ‘Livingstone v Rawyards Coal Co [1880] UKHL 3 (13 February 1880)’ <https://www.bailii.org/uk/cases/UKHL/1880/3.html> accessed 27 July 2020.

[3] ‘Jegon v Vivian: 1871’ (swarb.co.uk, 11 March 2019) <https://swarb.co.uk/jegon-v-vivian-1871/> accessed 28 July 2020.

[4] Louis Visscher, ‘Rotterdam Institute of Law and Economics (RILE) Working Paper Series’.

[5] ‘Donoghue v Stevenson [1932] UKHL 100 (26 May 1932),’ <https://www.bailii.org/uk/cases/UKHL/1932/100.html> accessed 28 July 2020.

[6] Richard Castle, ‘Lord Atkin and the Neighbour Test: Origins of the Principles of Negligence in Donoghue v Stevenson’ (2003) 7 Ecclesiastical Law Journal 210.

[7] Ibid. 10.

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