4. Negligence (Damages)

Question 1

Are damages presumed in negligence?

Answer 1

NO (Plaintiff must prove damages by preponderance of evidence)
- Unlike intentional torts

Question 2

What type of damages can Plaintiff recover from personal injury torts?

Answer 2

1) Economic damages (past/present/prospective)
- Medical expenses
- Directly from P’s loss (NOT from TP’s loss)

2) Non-economic damages (past/present/prospective)
- Pain, suffering
- Emotional distress

Question 3

Must damages be foreseeable in personal injury torts?

Answer 3

NO

- D takes P as he finds him

Question 4

What type of damages can Defendant recover from property damage torts?

Answer 4

If damaged => Reasonable cost of repair

If nearly destroyed => Fair market value (at time of accident)

NOT emotional distress

Question 5

When are punitive damages available?

Answer 5

D’s conduct was;

• Wanton and wilful
• Reckless
• Malicious

Generally NOT available

Question 6

What effect does Plaintiff’s benefits received from collateral sources have on recovery of damages?

Answer 6

None (Collateral Source Rule)

• NOT reduce recoverable damages
• E.g. health insurance, sick pay

Question 7

What duty does Plaintiff have in recovering damages?

Answer 7

Mitigate damages

• Personal injury: Seek appropriate treatment to effect cure + prevent aggravation
• Property: Preserve + safeguard property
• OTHERWISE NOT recoverable

Question 8

What type of damages are not recoverable?

Answer 8

Interest
- Since date of damage (personal injury)

Attorneys’ fees

Nominal damages

• Even though no harm done, courts would still award small amount of money
• But NOT in negligence

Question 9

What is the difference between intentional and negligent torts to person in terms of damages?

Answer 9

Intentional torts

• NO damages required
• Nominal damages recoverable
• Punitive damages recoverable (D’s malice)

Negligence

• Damages required
• NO nominal damages recoverable
• NO punitive damages recoverable

Question 10

What is the difference between intentional and negligent trespass over property in terms of damage?

Answer 10

Intentional trespass
- NO damage required

Negligent trespass
- Damage required