Introduction to Remedies: Fixing the Problem

In the world of the "market" (Contract and Negligence), things sometimes go wrong. A seller might fail to deliver goods, or a person might act carelessly and cause harm. When these legal rules are broken, the law provides remedies. Think of a remedy as a legal "medicine" designed to fix the situation and make things right for the person who suffered.

In this chapter, we focus on the two main remedies used in the market: Damages (money) and Injunctions (court orders to do or stop something).

1. Damages: The Monetary Solution

Damages are the most common remedy in civil law. It is important to remember that in Law, "damages" does not mean "harm"—it means financial compensation paid by the defendant to the claimant.

The Main Goal of Damages

The primary purpose of damages is compensation, not punishment. The court wants to put the claimant back into the position they would have been in if the legal wrong had never happened.

\( \text{Wrongful Act} + \text{Damages} = \text{Claimant's Original Position} \)


In Contract Law, this usually means putting the claimant in the position they would have been in if the contract had been performed correctly. In Negligence, it means putting them back to where they were before the accident or harm occurred.

Mitigation of Loss

This is a very important rule for your exams! Mitigation means that the claimant has a duty to keep their losses as low as reasonably possible. They cannot just sit back and let the losses pile up expecting the defendant to pay for everything.

Example: If a builder fails to fix a leaky roof, the homeowner must try to catch the water in buckets or cover the hole with a tarp. If they simply let the water ruin their expensive piano without trying to protect it, the court may refuse to award damages for the piano because the homeowner failed to mitigate their loss.

Quick Summary of Mitigation:
  • The claimant must take reasonable steps to minimize their loss.
  • The claimant cannot recover damages for losses that they could have avoided.
  • The defendant has the burden of proving that the claimant failed to mitigate.

Common Mistake to Avoid: Don't confuse "damage" with "damages." Damage is the harm (e.g., a broken arm), while damages is the money awarded by the court.

2. Injunctions: Court Orders

Sometimes, money is not enough to solve the problem. If a neighbor is planning to cut down a tree that doesn't belong to them, receiving money after the tree is gone isn't a great solution. This is where Injunctions come in.

An injunction is an equitable remedy. As you learned in Paper 1 (Section 1.2.8), equity is based on fairness. Because injunctions are equitable, they are discretionary. This means the judge does not have to grant one; they will only do so if it is the "fair" thing to do and if damages would not be a suitable remedy.

Types of Injunctions

There are two main types you need to know:

  1. Prohibitory Injunctions: These tell a person not to do something. For example, a court might order a company to stop polluting a river or stop a person from publishing a private letter.
  2. Mandatory Injunctions: These tell a person they must do something. For example, a court might order a neighbor to pull down a wall that they built across a shared driveway. These are less common than prohibitory injunctions.

When are Injunctions used?

In the context of the market and negligence, injunctions are often used to stop a continuing wrong. If a business is making a loud noise every night that prevents neighbors from sleeping (a nuisance), damages might pay for the past lost sleep, but an injunction is needed to stop the noise for the future.

Key Takeaway on Injunctions:
  • They are orders to do or stop doing an act.
  • They are discretionary (up to the judge's sense of fairness).
  • They are used when damages (money) would be an inadequate or "not good enough" remedy.

3. Comparing Damages and Injunctions

In your exam, you might be asked to assess which remedy is best for a specific scenario. Here is a quick comparison table to help you decide:

Damages:
— Awarded as a right if the case is proven.
— Focuses on financial compensation.
— Used for "one-off" events (like a car crash or a single breach of contract).
— Subject to the rule of mitigation of loss.

Injunctions:
— Awarded at the court's discretion (fairness).
— Focuses on behavior (stop/start doing something).
— Used for ongoing problems (like a repeated trespass or a nuisance).
— Only given if money alone cannot fix the situation.

Exam Tips for Paper 2

Since Paper 2 is based on scenarios, you won't just be asked "What is an injunction?" Instead, you will be given a story about a market dispute and asked to recommend a remedy.

Step-by-Step Analysis:

  1. Identify the harm: Is it a one-time financial loss or an ongoing problem?
  2. Consider Damages first: Can the problem be fixed with a check? If yes, calculate the damages and mention the duty to mitigate.
  3. Check if Injunction is needed: If the person is still doing the harmful act, suggest a prohibitory injunction.
  4. Evaluate: Briefly mention that injunctions are discretionary and the court will only grant them if it is fair to do so.

Did you know? The word "injunction" comes from the Latin injungere, which means "to join" or "to enjoin" (to give an order). It is one of the most powerful tools a judge has because disobeying an injunction can lead to being in "contempt of court," which can result in prison time!

Quick Review Quiz

1. What is the duty of a claimant to keep their losses low called? (Mitigation of Loss)

2. Which type of injunction tells someone to stop doing an act? (Prohibitory Injunction)

3. True or False: Damages are meant to punish the defendant. (False—they are meant to compensate the claimant)

4. Why are injunctions called "discretionary"? (Because the judge chooses to award them based on fairness/equity, rather than the claimant having an automatic right to one)