7. Remedies for Personal Injury and Death Flashcards
What is the aim of damages in tort?
To place the claimant, so far as money can, in the same position they would have been in had the tort not occurred
Does a claimant have a duty to mitigate their loss?
Yes
What are pecuniary losses?
Any financial losses suffered by the claimant as a result of the injury caused by the defendant
What is past income and is it capable of precise calculation?
Income lost in the period between injury and trial/settlement and is capable of precise calculation
What are the two ways in which a claimant’s injuries may cause them to lose future income?
- Claimant unable to return to work at all
- Claimant can return to work, but due to the injuries, they can only work a job with a lower rate of pay
How are damages assessed when the claimant is unable to return to work?
Multiply the claimant’s pre-accident annual income and multiply it by the number of years of lost income, with adjustments made to reflect the lump sum payment and the fact that the claimant could have lost his job in the future
How are damages assessed when the claimant is able to return to work but only to a job with a lower rate of pay?
Same as where unable to return to work, except the difference between old and new salaries is multiplied by the years of lost income
How are damages assessed when the claimant has a shortened life expectancy?
The claimant can recover for the income they would have earned in the lost years, adjusted based on the amount they would have spent on expenses during those years
Is a claimant expected to mitigate their loss by accepting treatment provided by the NHS instead of seeking private care?
No
What is a nonpecuniary loss?
Non-monetary losses such as pain and suffering and the loss of amenity which it causes
Are damages available for both past and future pain and suffering and loss of amenity?
Yes
What is the unconsciousness limitation on recovery for pain and suffering?
Any period the claimant was unconscious or in a condition where they were not feeling pain or actually suffering is subtracted from the damages.
However, they can still claim for loss of amenity during this time.
What are the damages based on where property is (1) destroyed and (2) damaged?
- Cost of replacement
- Diminution in value, often the cost of repair
Are consequential costs of property damage, e.g. of hiring a replacement whilst your own replacement is sorted, or during repair, recoverable?
Yes
But not if you had borrowed the thing which was damaged or destroyed from another person (pure economic loss)
What is the difference between special damages and general damages, and what types of damages come under each heading?
- Special damages can be precisely calculated at the time of trial, including past loss or earnings and past expenses
- General damages need to be assessed by the court, including future loss of earnings and future expenses, as well as nonpecuniary damages for future pain and suffering or loss of amenity
What are the two types of damages claim which arise on death?
- If a claimant dies, their existing cause of action may continue for the benefit of the estate
- If a victim dies, a new cause of action may arise for the benefit of their dependents and for bereavement
Where a claimant dies, what damages are recoverable and what are not recoverable by their estate?
Recoverable: Pain and suffering, loss of amenity, and expenses and loss of earnings up until death
Not recoverable: Any damages after the period of death, and no claim for the death itself
Does whether or not the cause of death of a claimant is related to the tort change anything about the continuation of their claim?
No
What is one type of claim which will not survive the death of a claimant?
Defamation
Do causes of action against a defendant who dies survive?
Yes, and can be brought again against their estate
Only what three groups can recover damages for bereavement?
- Spouse/civil partner
- Cohabiting partner of deceased for 2 years prior to death
- Parents, only if deceased was under 18 and never married
Who are two groups who are not eligible for bereavement damages but who could be used as trap answers on the exam?
- Parents of a child over 18
- Children upon death of a parent
What are the two conditions that must be satisfied to claim damages for loss of dependency?
- Eligible person (usually same parties who are eligible for bereavement), and
- Financially dependent on the deceased
Who can bring a dependency claim under the FAA 1976?
- spouse/civil partner
- any person who was living with deceased immediately before their death, and for at least two years before that, as if spouses/civil partners.
- any person treated by the deceased as his parent.
- any child or other descendant of deceased.
- siblings and aunts/uncles (+ their issues)
What damages are covered by the FAA 1976?
- bereavement
- dependency claim for dependants suffering financial losses
- funeral expenses
- loss of consortium (ie. personal affection of deceased)
What is required for a dependant to bring a dependency claim for a monetary award under the FAA?
must show they had a reasonable expectation of financial benefit from the deceased (ie. D was the main breadwinner in the family and supporting them).
What damages are covered by the LR(MP)A 1934?
- PSLA (up to date of death)
- loss of earnings and cost of care (special damages - up to date of death)
- damage to personal property
- funeral expense
What is the limitation period to bring a P.I claim?
- three years from cause of action; or
- from date claimant had knowledge injury was due to D’s negligence
What is the distinction between special and general damages?
Special damages compensate the claimant for all the financial losses they have suffered prior to trial (or death).
- provable and quantifiable losses
General damages cover pecuniary and non-pecuniary loses.
* cannot specifically be proven, or non-quatifiable
* covers future financial losses.
includes a sum of money for the pain, suffering and loss of amenity caused by the defendant’s negligence.
What damages may be sought by dependants of a deceased claimant under the Fatal Accidents Act 1976?
- Loss of income and services (ie. childcare, cooking etc)
- Funeral expenses
- Bereavement award but only available for a spouse/civil partner or if child was under 18 by their parents.
but not loss of intangible benefits.
What is one important distinction between a claim brought under the Law Reform (Misc Provisions) Act versus those brought under the Fatal Accident Act?
Law Reform Act = estate can claim and recover losses deceased would have been able to claim had they survived. Continuation of a pre-existing cause of action.
Fatal Accidents Act = separate claim brough by dependent’s of deceased BUT only on a cause which the victim could have brought had they survived.
- overlap in certain damages claimed, but FAA provides bereavement damages for example.
How is the multiplicand/multiplier approach relevant to calculating damages for future loss of earnings?
The multiplier represents the number of years for which the claimant could be expected to work and is adjusted to take account of contingencies.
The multiplier is applied to the multiplicand, for example current salary, to obtain the correct calculation. The ‘adjusted table multiplicand’ takes account of the claimant’s specific circumstances as not all claimants have the same backgrounds and qualifications.
The adjusted multiplier is applied by multiplication to the net annual loss (the multiplicand) which will give the present-day value of the future loss.
Multiplicand:
adjusts for interest that may accrue over lump sum award, so damages are effectively discounted at a standard rate.
- based on expectation that lump sum will be invested.
Multiplier
- salary expected, which is adjust to take into account future contingencies, by considering employment status/disability before accident/education and qualifications.
Where a claimant suffers multiple injuries, will damages be calculated separately for each injury?
No - court will generally account for overlap, instead of simply totally up all the independent calculations.
