7- Remedy of compensatory damages Flashcards
What is damages?
Compensation awarded by court to C for the injures they have suffered or damage to their property.
What is pecuniary loss?
Loss that can be easily calculated in money terms (ex: cost of hiring car while C’s car is being repaired).
Pecuniary= financial
What is non-pecuniary loss?
Loss that isn’t completely money-based, can include:
- pain and suffering as a result of the accident - loss of amenity (quality of life) or a change in lifestyle, such as not being able to play sport.
What are special damages?
Amounts which can be calculated specifically up to the date of the trial/settlement= pecuniary loss.
Loss of earnings while recovering from an accident could also be claimed.
What are general damages?
Non-pecuniary losses that look forwards from the trial/settlement date. Can include:
- an amount for pain/suffering - loss of amenity - future loss of earnings - future medical expenses including adapting a house/car to be suitable for a severely injured person and paying for specialist care.
How are general damages calculated?
Amounts are based on evidence that supports claim- including medical evidence of effect of accident on victim and how long it will take for the injuries to heal, if they do.
For future loss of earnings/medical expenses- annual calculation of loss, x number years of loss. (Ex: £25,000/year loss of earnings for 5 years will amount to £125,000).
What is meant by a lump sum?
When courts make an award for pain and suffering and loss of amenity (non-pecuniary loss), they can only award a lump sum.
It also has to be a ONCE-ONLY award- C cannot come back to court and say they have exhausted the damages.
- Can be unfair for C's whose condition worsens over time. - Where large award is made for future medical expenses, there is the problem of inflation. - On the other hand, an award of a lump sum might be unfair to D if C's condition improves over time.
To deal with these situations- Damages Act 1996 allows for structured settlements to be set.
What does the Damages Act 1996 allow?
- For structured settlements to be set.
- Allows parties who settle to agree that all/part of damages will be paid as periodical payments (so much a month/year).
- Arranged by D (or insurer)- payment through financial company.
- Allows parties who settle to agree that all/part of damages will be paid as periodical payments (so much a month/year).
- Allows parties to agree that payments may be made for life or specific period, and amount can be reassessed at intervals to ensure its value is maintained.
COURTS HAVE NO POWER TO ORDER SUCH STRUCTURED SETTLEMENTS.
What is mitigation of loss?
C is entitled to compensation for loss, but has a duty to keep the loss at a reasonable level.
Ex: C not able to claim for private healthcare if available through NHS (if private treatment the only available, it can be claimed).
= principle applies for property damage
Ex: If property is damaged beyond repair, cost of replacing it can be claimed. Cannot be more expensive.
What are 2 of the most common remedies in tort?
- Damages
2. Injuctions
What is an injunction?
Order from court to stop doing something.
If D fails to follow its terms, they will be in contempt of court and can be punished with a fine/imprisonment for max 2 years.
What is contempt of court?
Failure to follow an order of the civil court. Court can order punishment if the failure is serious or continues for a period of time.
What are different types of injunctions?
- Injunction ordered during the case (Ex: to disclose docs or not to continue an action until trial).
- Perpetual injunction- most common, ordered as a final order (Ex: in a nuisance case to ensure D doesn’t continue to cause a nuisance).
- Mandatory injunction- less common, orders a party to carry out a certain action (Ex: in a nuisance, installing sound-proofing).
What is the importance of Coventry v Lawrence?
SC nuisance case, court criticised the granting of too many injunctions.
Likely that less injunctions will be granted and damaged will become a + common alternative.
