Ch 5: Remedies In Tort Flashcards
What is the appropriate remedy for Per Se Torts (where no actual harm must be suffered)?
Nominal Damages
What is the purpose of Damages?
To compensate the claimant - to make them the same situation as if the event had never happened. NOT better.
What is the principle of Mitigation of Loss?
Claimants cannot claim for damages that they could have mitigated by taking reasonable steps.
Claimants must take all reasonable steps to keep the losses they are claiming for to a minimum.
What is the One Action Rule?
A claimant can bring only one claim based on a set of facts.
The claim must therefore encompass not only damages suffered now, but also potential future, as the claimant cannot return to claim more later.
What are General Damages?
Damages that are not capable of being calculated precisely and must be determined by the court - e.g pain and suffering
What are Special Damages?
Losses capable of being calculated precisely at the time of the trial in a calculation
What are the two categories of damage?
Pecuniary and Non-Pecuniary Damages
What are Non-Pecuniary Danages?
Losses not capable of being calculated in money terms.
E.g Pain and Suffering, or Loss of Amenity caused
Do non-pecuniary damages include psychological stress and anguish?
Yes - Administration of Justice Act 1982
What is the Wise v Kay (1962) Test for Pain and Suffering damages?
The claimant must be AWARE of the injuries to be able to claim. If a claimant was unconscious they cannot claim for pain and suffering during that period.
What is the aim of remedies in Tort?
To compensate for damages (including loss of opportunity etc)
To place the claimant in the same position as they would have been if the Tort had not been committed.
When js a Nominal Damage appropriate?
When a tort is actionable “per-Se” - I.e no loss has to have occurred to establish a claim
What is the Duty to Mitigate?
Claimants cannot claim for losses which they could have avoided by taking reasonable steps.
The claimant must make all reasonable steps to keep the losses being claimed for to a minimum
What is the One Action Rule?
A claimant can bring only one claim based on one set of facts.
Therefore damages must take into account future losses as a claimant cannot return to claim more in the future.
What are General and Special Damages?
General Damages - those that cannot be calculated exactly and must be determined by the court
Special Damages - those that are capable of being precisely calculated at the time of trial
What damages are covered by Koss of Amenity?
Loss of enjoyment of life - e.g loss of freedom of movement, loss of sight, loss of hobbies etc
Can a claimant claim Loss of Amenity if unconscious?
Yes
How are non-pecuniary damages quantified?
Reference to precedent and guidance e.g Judicial College Guidelines or Kemp on Damages
Always on estimate though (General Damages)
What are 3 examples of Pecuniary Losses?
Medical Expenses
Loss of Earnings Pre-Trial
Loss of Earnings Post-Trial
Can a claimant claim for medical expenses under the NHS?
No
Can a claimant claim for Private Medical Services?
Yes if reasonable (Law of Reform 1948)
Are Loss of Earnings calculated Gross or Net of Taxes?
Net
What is the Multipicand?
Claimants gross annual loss at point of Trial. This is used as the basis for calculating expected future losses.
What is the Muliplier?
Number of years for which expected financial losses should extend.
How is the post-discount rate multiplier found?
Using Ogden Tables based on age and discount rate
How to calculate expected earnings if life expectancy has been shortened?
Pickett v British Rail (1980) established that claimants could recover future loss of earnings even for the lost years.
How to calculate loss of future earnings for a child?
Possibilities include using Parents earnings - or a particular average sector of the child has an interest in a sector?
What Deductions should be considered from damages?
Extra financial support (e.g disability benefit)
Insurance payments and pensions are not deducted.
What 3 Heads of Damage can have State Benefits dedicated from them?
- Comp for lost earnings
- Comp for cost of care
- Comp for loss of mobility
No benefits can be deducted from claim in pain and suffering or loss of amenity
