8. Principles of Remedies for Personal Injury and Death Claims

Question 1

Goal of damages in tort

Answer 1

Should return the claimant to their pre-tort position

Question 2

DEF: Mitigation

Answer 2

The claimant has a duty to mitigate the losses suffered (keep them to a reasonable amount)

Question 3

DEF: One Action Rule

Answer 3

Once the matter gets to trial or is settled, the claimant is compensated wholly for their loss (no more claims)

Question 4

General Damages

Answer 4

Not capable of precise calculation, so require court discretion
- includes injury itself and future losses

Question 5

Special Damages

Answer 5

• Can be calculated precisely at the date of trial or settlement
• ie. wage slips, receipts.

Question 6

Pecuniary Losses

Answer 6

• Losses with a financial value / all other losses
• medical expenses
• lost-income pre-trial
• future losses and multiplier method

Question 7

Non-Pecuniary Losses

Answer 7

• Non-financial loss (ie. the injury itself)
• made up of pain and suffering and loss of amenity

Question 8

Multiplicand - future losses of income

Answer 8

The net amount of income (annually) lost to the claimant
- does not include inflation

Question 9

Multiplier

Answer 9

• Multiply by multiplicand
• Amount of time the claimant will suffer these losses
• Adjusted to ensure that C is not over or under compensated, taking into account interest and inflation
• Use discount rate (Ogden tables)

Question 10

Where is discount multiplier found?

Answer 10

On the Ogden tables
- currently -0.25%

Question 11

Damages on Death, what must be established before a claim can be made for such damages?

Answer 11

Must be clear that the deceased claimant would have had a claim in tort against the defendant

Question 12

Damages on Death: Two possible Claims

Answer 12

1) Claim by the estate
2) Claim by the claimant’s dependants

Question 13

Damages after death: What would a claim by the claimant’s estate cover?

Answer 13

1. C’s losses until their death:
   i. the injury itself
   ii. lost income etc.
   iii. Other outgoing expenses (property damage etc.)
   iv. Funeral costs (if paid by the estate)

Question 14

Damages after death: What does a claim by C’s dependants recover?

Answer 14

1. Loss of dependency
2. bereavement
3. funeral costs (if paid by dependants)

Question 15

List of ‘dependants’ defined by statute

Answer 15

Those who are ACTUALLY financially dependent on claimant before their death
- spouses
- civil partners
- parents
- children
- siblings

Question 16

How is the ‘loss of dependency’ calculated for damages after death?

Answer 16

Multiplicand: deceased’s net income - living expenses
- Multiplied by number of years the dependant would have been dependant on the deceased
- adjusted by the Ogden tables

Question 17

What can be recovered by a claim of bereavement? Who can claim this?

Answer 17

1. A fixed sum of 15 120
2. Spouses and civil partners and parents of unmarried minors

Question 18

In a personal injury claim, if the claimant’s mother gives up work to care for them, will this generate additional damages?

Answer 18

Yes, the claimant can get damages if the relative gives up work and these cannot exceed the commercial rate for providing these services

Question 19

When can the claimant in a PI claim get damages for ‘loss of earning capacity’?

Answer 19

If a claimant’s injury means they can still work but will suffer a disadvantage on the job market in the future

Question 20

In a PI claim, if the claimant gets private medical treatment (instead of NHS care) can they claim the full cost of these medical expenses in damages?

Answer 20

Yes, a claimant cannot be found as having failed to mitigate their loss by paying for private treatment

Question 21

Can a claimant in a PI case retrospectively claim for the amount they would have spent on private healthcare (when they actually used the NHS)

Answer 21

No