Mitigation and Injunctions | AQA A-Level Law
For Specification 7162
AQA A-Level Law | Free Revision Notes
Estimated study time: 40 minutes
Tort remedies aim to respond appropriately to the harm caused by a defendant. These Mitigation and injunctions A-Level Law revision notes examine two different ideas: the claimant's responsibility to take reasonable steps to minimise their losses, and the court's power to use an injunction to stop or restrict continuing conduct. AQA requires a basic understanding of mitigation, injunctions and the factors governing whether an injunction should be granted, including the balancing of conflicting interests. The topic develops compensatory damages [Lesson 114. Compensatory damages] and completes the remedies section before synoptic tort problems [Lesson 116. Synoptic tort problems].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain the principle of mitigation of loss.
Apply mitigation to a claimant's conduct following a tort.
Explain the nature of an injunction as a remedy.
Distinguish a full injunction, a partial injunction and damages instead of an injunction.
Explain why injunctions are discretionary remedies.
Apply relevant factors to determine an appropriate remedy in a tort scenario.
Revision Notes 📚
Mitigation and injunctions A-Level Law revision: two different ideas
Mitigation and injunctions both concern remedies, but they answer different questions.
Mitigation asks:
What reasonable steps should the claimant take to minimise the loss caused by the tort?
An injunction asks:
Should the court order the defendant to stop or limit the activity causing the claimant's problem?
Do not confuse them.
Mitigation is particularly relevant when assessing damages.
An injunction is particularly important where conduct is continuing and monetary compensation may not provide the most appropriate solution.
Mitigation of loss
What is mitigation?
The AQA specification requires a basic understanding of the principle of mitigation of loss as part of tort remedies.
AQA's specimen assessment states the principle very clearly:
A claimant should take reasonable steps to minimise their losses.
The central idea is therefore that a claimant cannot simply allow the financial consequences of a tort to increase unnecessarily and expect the defendant to compensate them without regard to their own response.
Mitigation follows the defendant's tort
Mitigation does not mean that the claimant caused the original wrong.
The correct sequence is:
The defendant commits a tort.
The claimant suffers loss.
The claimant must respond reasonably to that situation.
The court considers the claimant's losses when assessing compensation.
This makes mitigation different from contributory negligence [Lesson 111. Contributory negligence].
Mitigation and contributory negligence compared
Mitigation | Contributory negligence |
Concerns what the claimant does to minimise loss following the defendant's tort | Concerns the claimant's contribution to the accident or extent of the damage |
Relevant when assessing loss and damages | A partial defence |
Claimant should take reasonable steps to minimise losses | Claimant failed to take reasonable care for their own safety |
Focuses on avoiding unnecessary continuation or increase of loss | Focuses on shared responsibility for the damage |
Example
A negligent driver injures Alex.
Alex's failure to wear a seat belt may raise contributory negligence because it may have increased the original injury.
What Alex reasonably does after the accident to prevent additional financial loss raises mitigation.
Keep the two stages separate.
The standard is reasonable steps
AQA does not require the claimant to eliminate every possible loss.
The wording used in the specimen material is reasonable steps.
This means the examination focus should be on the claimant's response to the circumstances.
Ask:
What loss is continuing or increasing?
Is there an obvious step which could reduce that loss?
Has the claimant taken that step?
Was the claimant's response reasonable in the circumstances?
Worked mitigation example: property damage
Nadia's business equipment is damaged by Omar's negligence.
The equipment can no longer be used and Nadia begins losing income.
A suitable mitigation analysis would identify whether Nadia takes reasonable steps to minimise the continuing financial loss.
For example, if the scenario states that an affordable temporary alternative is immediately available, the court may consider Nadia's response to that option when assessing her losses.
The point is not to revisit whether Omar committed the tort.
The question is what Nadia reasonably did after the loss began.
Worked mitigation example: physical injury
Suppose Priya suffers an injury because of the defendant's negligence.
The question of damages is considered using compensatory damages [Lesson 114. Compensatory damages].
Mitigation adds a further question:
Did Priya take reasonable steps to prevent her resulting losses from increasing unnecessarily?
In an exam, use only the facts provided. Do not invent treatment decisions or other opportunities which the scenario does not mention.
Mitigation and economic loss
Mitigation can be particularly significant where loss continues over time.
Examples may include:
continuing lost earnings
continuing business losses
continuing expenses.
However, before discussing mitigation, make sure the economic loss is legally recoverable in the first place.
For example:
pure economic loss caused by negligent acts may be restricted
economic loss arising from a valid negligent misstatement claim may be recoverable
consequential economic loss may arise from physical injury or property damage.
Mitigation does not create a right to damages where the underlying law does not permit recovery.
A reliable mitigation structure
Use the following approach.
Step 1: Establish liability
Identify the defendant's tort.
Step 2: Identify the recoverable loss
Explain what financial or other loss the claimant has suffered.
Step 3: Identify an opportunity to reduce the loss
Use a fact expressly raised by the scenario.
Step 4: Apply the mitigation principle
Ask whether taking that step would amount to a reasonable step to minimise the claimant's losses.
Step 5: Reach a conclusion
Explain how the claimant's response affects the assessment of damages.
Do not turn mitigation into a new duty of care
A claimant's obligation to mitigate is part of determining their remedy.
It does not mean that the claimant suddenly owes the defendant an ordinary negligence duty.
Avoid language such as:
"The claimant breached a duty of care to the defendant."
Instead:
"The claimant is expected to take reasonable steps to minimise the losses for which compensation is sought."
Injunctions
What is an injunction?
An injunction is a court order requiring a defendant to stop or limit an activity.
AQA's 2025 mark scheme uses this description directly.
It is particularly important in private nuisance [Lesson 107. Private nuisance], where the claimant may face a continuing interference with the use and enjoyment of land.
For example, damages may compensate for loss already suffered, but if excessive noise continues every night, the claimant may also want the activity itself to be restricted.
Injunctions and damages perform different functions
Damages provide financial compensation.
An injunction changes or restricts the defendant's future conduct.
Damages | Injunction |
Monetary remedy | Court order |
Compensates for loss | Stops or limits activity |
Particularly suitable for financial or completed loss | Particularly useful for continuing interference |
Amount is assessed financially | Terms specify what conduct must stop or change |
A successful private nuisance claimant may therefore need the court to decide whether:
damages are appropriate
an injunction is appropriate
some combination or limitation is appropriate.
Injunctions in private nuisance
AQA assessment materials repeatedly identify an injunction and damages as possible remedies for successful private nuisance claims.
The claimant first needs to establish private nuisance [Lesson 107. Private nuisance].
Only then should the remedy be analysed.
Do not write:
"The activity is annoying, so the court should grant an injunction."
The proper sequence is:
liability → appropriate remedy
Full injunction
A full injunction may prevent the defendant from continuing the activity which constitutes the nuisance.
This may be appropriate where stopping the activity is the proper way of protecting the claimant's land rights.
However, an injunction is not automatic merely because private nuisance has been proved.
Partial injunction
A partial injunction limits the defendant's conduct without prohibiting it completely.
AQA mark schemes repeatedly recognise this possibility.
For example, where an activity creates excessive noise, a partial injunction might limit:
the times at which the activity occurs
its frequency
the way in which it is carried out.
The exact order depends on the circumstances.
A partial injunction may therefore allow both parties' interests to be protected to some extent.
Damages instead of an injunction
The court may also conclude that damages are more appropriate than an injunction.
AQA's 2025 mark scheme specifically identifies whether damages would be a more appropriate or satisfactory remedy as a factor relevant to the injunction decision.
This is particularly important where completely or substantially restricting the defendant's activity would have consequences which make monetary compensation a more suitable response.
Injunctions are equitable remedies
AQA's 2025 mark scheme expressly identifies an injunction as an equitable and discretionary remedy.
Discretionary means that the court decides whether granting the injunction is appropriate.
The claimant does not have an automatic right to an injunction merely because they have successfully established private nuisance.
The judge must consider the circumstances.
Balancing conflicting interests
The AQA specification specifically requires a basic understanding of:
the factors governing the grant of an injunction
the way conflicting interests are balanced.
This is one of the most important ideas in the topic.
The court may need to balance:
the claimant's right to use and enjoy their land
the consequences for the defendant if the activity is restricted
any wider consequences of the proposed order.
The claimant's interest
A claimant may have suffered a serious and continuing interference.
Relevant questions include:
How significant is the continuing nuisance?
How regularly does it occur?
Would damages alone leave the claimant continuing to suffer the interference?
Would stopping or limiting the activity provide more effective protection?
The defendant's interest
The court also considers what an injunction would mean for the defendant.
For example:
Would a complete injunction shut down the relevant activity?
Could a partial restriction solve the problem instead?
Could the defendant continue operating while reducing the interference?
AQA's 2025 mark scheme framed the issue as balancing the claimant's interests against the defendant's need to continue operating the activity in question.
Full injunction, partial injunction or damages
A strong remedy discussion should compare the options rather than simply naming "injunction".
Ask:
Full injunction
Would the nuisance need to stop altogether?
Partial injunction
Could the claimant be protected by limiting rather than prohibiting the activity?
Damages instead
Would compensation be a more appropriate or satisfactory remedy?
AQA's 2023 and 2025 mark schemes expressly recognise all three possibilities.
Public benefit and injunctions
This topic requires a careful distinction from the rules governing liability in private nuisance.
Following the approach reflected in current AQA materials, public benefit is not used to decide whether an otherwise substantial interference amounts to private nuisance, but the consequences for public benefit may be relevant when deciding what remedy should be granted.
AQA's 2025 mark scheme expressly identifies potential public benefit lost by awarding an injunction as a consideration at the remedy stage.
This gives you a crucial exam distinction:
Question | Public benefit |
Does private nuisance exist? | Do not use public benefit to justify an otherwise actionable nuisance |
Should an injunction be granted? | Potential loss of public benefit may be relevant |
Worked public benefit example
A successful private nuisance claim is established against a popular local facility.
The claimant suffers substantial continuing noise.
At the remedy stage, the judge might consider:
the claimant's continuing right to enjoy the property
whether damages would adequately respond to that interference
whether a partial injunction could reduce the nuisance
what wider benefit might be lost if the facility were completely prevented from operating.
The result might therefore be:
a full injunction
a partial injunction
damages instead.
Do not use the public benefit argument to deny liability if private nuisance has already been established.
Planning permission
AQA's 2025 examiner report notes that stronger answers sometimes discussed the possible existence of planning permission when considering whether an injunction should be granted.
For AQA purposes, treat this as a possible contextual consideration at the remedy stage where the scenario raises it.
Do not state that planning permission automatically:
prevents private nuisance
prevents an injunction
creates a complete defence.
The court still has to determine the appropriate remedy in the circumstances.
Malice and the remedy decision
Malice is important when establishing private nuisance, as explained in private nuisance [Lesson 107. Private nuisance].
The 2025 examiner report also records that students used malice when discussing the injunction decision.
For example, where a defendant deliberately continues or intensifies interference specifically to upset the claimant, this may strengthen the argument that simply awarding money would not adequately protect the claimant from continuing behaviour.
However, do not automatically write:
"There is malice, therefore there must be a full injunction."
The remedy remains discretionary.
Locality and the remedy decision
The 2025 examiner report similarly records discussion of locality in successful injunction answers.
Again, the key is application rather than listing factors.
A claimant facing serious continuing interference in their home may have a strong interest in effective protection.
At the same time, the defendant's activity and the wider context may influence whether the best solution is:
prohibition
limitation
damages.
Can the financial loss be assessed?
AQA's 2023 mark scheme identifies the possibility of assessing the claimant's financial loss as relevant when choosing a remedy.
If monetary loss can be satisfactorily valued, this may support an argument for damages.
Where the central problem is instead a continuing interference which money cannot satisfactorily resolve, an injunction may become more attractive.
This does not create an automatic rule.
It is one consideration within the court's discretionary balancing exercise.
Injunctions and Rylands v Fletcher
The rule in the rule in Rylands v Fletcher [Lesson 108. The rule in Rylands v Fletcher] is normally associated in AQA materials with compensatory damages for the property damage caused by an escape.
By contrast, AQA's examination materials place their detailed injunction analysis within private nuisance.
This gives you a useful exam distinction:
Private nuisance → consider damages and/or injunction
Rylands v Fletcher → compensatory damages are the usual remedy emphasised by AQA
Do not automatically add an extended injunction discussion to every Rylands v Fletcher answer.
Choosing an appropriate tort remedy
A remedy question should begin with the nature of the claimant's problem.
Physical injury
Where the claimant suffers physical injury, the principal remedy is generally compensatory damages.
Consider the categories studied in compensatory damages [Lesson 114. Compensatory damages].
Property damage
Where property has been damaged, compensatory damages may reflect the recoverable financial loss.
Again, mitigation may affect the extent of continuing loss.
Economic loss
Where economic loss is legally recoverable, compensatory damages may be appropriate.
The claimant remains expected to take reasonable steps to minimise their losses.
Continuing private nuisance
Where private nuisance continues, ask whether money alone adequately protects the claimant.
Consider:
full injunction
partial injunction
damages instead.
Rylands v Fletcher
Where an escape causes recoverable property damage, compensatory damages are the remedy most clearly emphasised in AQA assessment materials.
A complete remedy structure
Step 1: Establish liability
Do not choose a remedy before identifying the tort.
Step 2: Apply any defence
Consider relevant rules from:
contributory negligence [Lesson 111. Contributory negligence]
consent [Lesson 112. Consent]
defences to nuisance and Rylands v Fletcher [Lesson 113. Defences to nuisance and Rylands v Fletcher].
Step 3: Identify the claimant's loss
Is it:
physical injury
property damage
economic loss
continuing interference with land?
Step 4: Consider compensatory damages
Use the principles from compensatory damages [Lesson 114. Compensatory damages].
Step 5: Apply mitigation
Has the claimant taken reasonable steps to minimise continuing losses?
Step 6: If private nuisance is continuing, consider an injunction
Ask whether the activity should:
stop completely
be limited
continue with damages being awarded instead.
Step 7: Balance the interests
Consider the practical effect upon:
the claimant
the defendant
where relevant, wider public interests.
Step 8: Reach a substantiated conclusion
Do not merely say:
"The court will grant an injunction."
Explain why that remedy is more appropriate than the alternatives.
Worked application: mitigation
A negligent driver damages Erin's commercial vehicle.
Erin cannot use the vehicle for her business and begins losing income. The scenario states that she can obtain an equivalent temporary vehicle immediately at a reasonable cost but refuses to consider doing so for several months.
Assuming the defendant is liable, the remedy analysis should consider:
Erin has suffered recoverable loss caused by the tort.
Compensatory damages may be available under compensatory damages [Lesson 114. Compensatory damages].
However, Erin is expected to take reasonable steps to minimise her losses.
The availability of a reasonable temporary alternative is therefore relevant.
The court should consider whether Erin acted reasonably in allowing the income loss to continue.
The key phrase is:
reasonable steps to minimise loss
Do not turn the issue into another breach-of-duty analysis.
Worked application: private nuisance injunction
Kelvin owns a house next to land used by Lola for a successful recreational business.
Assume Kelvin establishes that Lola's activities amount to private nuisance because they substantially interfere with the ordinary use and enjoyment of his land.
The nuisance occurs repeatedly, but a complete closure of Lola's business would have significant consequences.
A strong remedy analysis would be:
Kelvin has already established private nuisance.
An injunction is a court order requiring Lola to stop or limit the relevant activity.
It is an equitable and discretionary remedy.
A full injunction could prohibit the nuisance-producing activity.
However, this could substantially interfere with Lola's ability to operate her business.
The court could instead consider a partial injunction, limiting the times or extent of the activity.
Alternatively, the court could consider whether damages instead of an injunction would satisfactorily compensate Kelvin.
The judge should balance Kelvin's right to protection from the continuing nuisance with the consequences of the order for Lola.
Any relevant wider public benefit may be considered when determining the remedy.
A partial injunction may provide a balanced solution if it protects Kelvin while allowing some of Lola's activity to continue.
This reflects the approach AQA rewarded in its 2025 assessment, which specifically required students to assess the factors influencing whether an injunction should be granted.
Worked contrast: damages may be more suitable
Assume a private nuisance has occurred but:
the interference has now permanently ended
there is no realistic prospect that it will restart
the claimant has suffered measurable financial loss.
An injunction aimed at stopping future conduct may have much less practical value.
Compensatory damages may provide the more appropriate remedy.
Always connect the remedy to the problem which still needs to be solved.
Worked contrast: partial injunction
A business creates actionable noise until midnight every day.
Completely closing the business would have significant consequences, but the evidence suggests that preventing noisy activity after 7 pm would substantially protect the claimant.
The court might consider a partial injunction.
A strong answer would explain that this:
protects the claimant from the most serious continuing interference
avoids unnecessarily preventing all of the defendant's activity
reflects the balancing of competing interests required by AQA.
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Mitigation | The principle that a claimant should take reasonable steps to minimise their losses. | Analyse how the claimant responds to continuing loss when damages are assessed. |
Injunction | A court order requiring the defendant to stop or limit an activity. | Identify a possible remedy for continuing private nuisance. |
Partial injunction | An injunction which restricts an activity rather than prohibiting it completely. | Explain how the court may balance the claimant's interests against those of the defendant. |
Discretionary remedy | A remedy which the court decides whether it is appropriate to grant in the circumstances. | Explain why a successful private nuisance claimant does not automatically receive an injunction. |
Damages instead of an injunction | Monetary compensation awarded where damages provide a more appropriate response than restricting the defendant's conduct. | Compare alternative remedies and justify which is most suitable. |
Hints from the Examiner Reports 💡
Examiner hint: Do not merely identify an injunction. Explain that it is a court order requiring the defendant to stop or limit an activity and then apply the remedy to the specific facts.
Examiner hint: AQA's 2025 question gave 7 marks specifically to assessing the factors influencing whether an injunction should be granted. Students therefore need to do more than establish private nuisance and mention an injunction at the end.
Examiner hint: Compare the realistic alternatives: a full injunction, partial injunction or damages instead of an injunction. AQA mark schemes repeatedly reward this balanced approach.
Examiner hint: Remember that an injunction is an equitable and discretionary remedy. Relevant considerations can include whether damages would provide a more satisfactory solution and what public benefit might be lost by restricting the activity.
Examiner hint: Do not simply repeat the factors used to establish private nuisance. The 2025 examiner report identified this as a weakness. Explain how a factor affects the choice of remedy.
Examiner hint: Keep public benefit in the correct part of the answer. It may be relevant to deciding whether to grant an injunction, but it should not be used to justify an otherwise actionable private nuisance.
Examiner hint: For mitigation, the AQA specimen material gives the rule in a very concise form: the claimant should take reasonable steps to minimise their losses.
Common Mistakes ⚠️
Mistake: Saying mitigation means the claimant must prevent all loss
Why this is incorrect: AQA frames the principle in terms of taking reasonable steps to minimise loss.
How to improve: Identify a realistic step raised by the scenario and analyse whether it would be reasonable for the claimant to take it.
Mistake: Confusing mitigation with contributory negligence
Why this is incorrect: Contributory negligence concerns the claimant's share of responsibility for the accident or damage. Mitigation concerns reasonable steps to minimise losses.
How to improve: Keep the chronology clear: establish the tort and resulting loss, then consider mitigation.
Mistake: Discussing mitigation before establishing recoverable loss
Why this is incorrect: Mitigation does not make an otherwise unrecoverable loss recoverable.
How to improve: First establish liability and the relevant loss, then apply mitigation.
Mistake: Assuming an injunction automatically follows private nuisance
Why this is incorrect: An injunction is discretionary.
How to improve: Compare a full injunction, partial injunction and damages before deciding which is most suitable.
Mistake: Saying an injunction pays the claimant compensation
Why this is incorrect: An injunction is an order controlling the defendant's conduct.
How to improve: Remember:
damages = money
injunction = court order
Mistake: Listing nuisance liability factors again without discussing remedy
Why this is incorrect: The court's question has changed from whether private nuisance exists to what should now be done about it.
How to improve: Explain how the facts affect the suitability of prohibition, limitation or damages.
Mistake: Using public benefit to deny private nuisance liability
Why this is incorrect: Current AQA materials place public benefit within consideration of the remedy, rather than using it to justify an otherwise actionable interference.
How to improve: Establish liability first. Then discuss whether public benefit affects the appropriate injunction.
Mistake: Assuming planning permission guarantees that no injunction can be granted
Why this is incorrect: AQA's 2025 examiner report treats planning permission as a possible consideration, not an automatic answer.
How to improve: Include it within the wider discretionary balancing exercise where the scenario raises it.
Exam-Style Questions ✍️
Question 1
Which one of the following best describes a claimant's responsibility to mitigate loss?
A. The claimant must eliminate every loss caused by the defendant.
B. The claimant must prove that the defendant intended the loss.
C. The claimant should take reasonable steps to minimise their losses.
D. The claimant must accept any settlement offered by the defendant.
[1 mark]
Question 2
Explain what is meant by an injunction as a tort remedy.
[2 marks]
Question 3
Explain the difference between a full injunction and a partial injunction.
[3 marks]
Question 4
A defendant negligently damages equipment used in Maya's business. Maya begins losing profits.
The facts state that an immediately available and reasonably priced temporary replacement would allow her business to continue, but Maya refuses to consider obtaining it.
Explain why the principle of mitigation may be relevant to Maya's claim for damages.
[5 marks]
Question 5
Noah establishes that repeated late-night noise from Priya's neighbouring business amounts to private nuisance.
Explain why the court might consider a partial injunction rather than automatically ordering Priya to close the business completely.
[5 marks]
Question 6
Rosa successfully establishes private nuisance against a popular local activity operated by Sam. The nuisance occurs for several hours every evening and seriously interferes with Rosa's use of her home.
A full injunction would prevent the activity operating at all. Limiting the activity to daytime hours would substantially reduce the interference.
Analyse which remedy may be most appropriate.
[10 marks]
Question 7
Tariq successfully establishes private nuisance caused by a business beside his home.
The business provides a service used by many people. Tariq argues that it should be completely prohibited. The defendant argues that any proven financial loss can be compensated with damages.
Analyse the factors which may influence the court when deciding whether to grant an injunction.
[10 marks]
Question 8
Analyse the principles of mitigation of loss and injunctions, explaining how they affect the remedy available to a successful claimant in tort.
[15 marks]
Mark Scheme
Question 1
Answer: C. [1 mark]
A claimant should take reasonable steps to minimise their losses.
Question 2
Award up to 2 marks:
1 mark: An injunction is a court order directed at the defendant.
1 mark: It may require the defendant to stop or limit the activity causing the problem.
Question 3
Award up to 3 marks:
A full injunction may prevent the relevant nuisance-producing activity from continuing.
A partial injunction restricts the activity rather than stopping it completely.
A partial injunction may therefore provide a way of protecting the claimant while allowing some of the defendant's activity to continue.
Question 4
Award up to 5 marks.
Indicative content:
Maya may be entitled to compensatory damages if the defendant's tort caused recoverable business loss.
However, she is expected to take reasonable steps to minimise her losses.
A temporary replacement is expressly stated to be immediately available.
It is also described as reasonably priced.
Obtaining it may therefore be a reasonable way of reducing the continuing lost profits.
Her unexplained refusal to consider the available step is relevant when assessing the loss for which compensation is sought.
Mitigation should be kept separate from whether the defendant committed the original tort.
Question 5
Award up to 5 marks.
Indicative content:
Noah must first have established private nuisance.
An injunction can stop or limit the defendant's activity.
It is a discretionary remedy rather than an automatic consequence of liability.
A complete prohibition may have a significant impact on Priya's business.
The court should balance Noah's need for protection from the nuisance against the consequences of the order for Priya.
A partial injunction might restrict the hours during which the noise can occur.
This could protect Noah's enjoyment of his land without necessarily closing the business completely.
Damages instead may also be considered where appropriate.
Question 6
Award up to 10 marks for knowledge, application and reasoned analysis.
Indicative content:
Rosa has already established private nuisance.
The remaining question concerns the appropriate remedy.
An injunction is a court order requiring Sam to stop or limit the relevant activity.
It is an equitable and discretionary remedy.
Rosa suffers serious continuing interference for several hours every evening.
This supports an argument that damages alone may not adequately protect her future use and enjoyment of the home.
A full injunction would completely prevent Sam's activity.
This would provide maximum protection to Rosa but would have substantial consequences for Sam and those benefiting from the activity.
A partial injunction could limit operation to daytime hours.
The facts state that this would substantially reduce the nuisance.
This may therefore balance the competing interests more effectively.
Any relevant public benefit may be considered at the remedy stage.
The court could also consider damages instead if monetary compensation would provide a satisfactory solution.
On the facts, a partial injunction is a strong possible conclusion because it directly limits the serious continuing interference without necessarily prohibiting the activity completely.
Credit other reasoned conclusions based on the facts.
Question 7
Award up to 10 marks.
Indicative content:
An injunction is an equitable and discretionary remedy.
Tariq does not receive a full injunction automatically merely because private nuisance has been established.
The judge must balance competing interests.
Tariq has an interest in protecting the ordinary use and enjoyment of his home from continuing interference.
The seriousness and continuing nature of the nuisance may support an injunction.
The impact that a full injunction would have upon the defendant should also be considered.
The activity provides a service used by many people, so possible loss of wider public benefit may be relevant to the choice of remedy.
This public benefit belongs at the remedy stage, rather than operating as an excuse for the private nuisance itself.
The court may consider whether financial loss can be adequately assessed.
If damages provide a satisfactory remedy, damages instead of an injunction may be considered.
Alternatively, a partial injunction may balance the parties' interests more effectively than either complete prohibition or damages alone.
Where raised by the facts, matters such as planning permission may form part of the contextual assessment.
A substantiated conclusion should compare the available remedies rather than merely name an injunction.
Question 8
Award up to 15 marks according to the quality of legal knowledge, explanation and analysis.
A strong response may include:
identification of mitigation and injunctions as part of AQA's tort remedies content
the principle that a claimant should take reasonable steps to minimise their losses
recognition that mitigation relates to the assessment of loss rather than determining whether the defendant originally committed the tort
distinction between mitigation and contributory negligence [Lesson 111. Contributory negligence]
application of mitigation to physical injury, property damage and legally recoverable economic loss where the facts provide an opportunity to reduce continuing loss
recognition that mitigation cannot make an otherwise legally unrecoverable loss recoverable
definition of an injunction as a court order requiring a defendant to stop or limit an activity
injunctions as particularly important remedies in private nuisance
recognition that damages and injunctions perform different functions
full injunctions
partial injunctions
damages instead of an injunction
recognition that an injunction is equitable and discretionary
the need to balance conflicting interests
protection of the claimant's land rights
consequences for the defendant of a full restriction
whether a partial restriction could provide sufficient protection
whether damages would provide a more appropriate or satisfactory remedy
possible consideration of wider public benefit at the remedy stage
possible consideration of planning permission where raised by the facts
the importance of keeping public benefit separate from the question of whether private nuisance exists
recognition that AQA materials generally associate Rylands v Fletcher with compensatory damages rather than detailed injunction analysis
connection with compensatory damages [Lesson 114. Compensatory damages]
application of remedies only after liability and any defence have been considered
a reasoned conclusion selecting the remedy most appropriate to the particular claimant's continuing problem rather than assuming that every successful tort claim should receive the same remedy.
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