Chapter 5 - Remedies in Tort

Question 1

What is the main concern of a lawyer’s client in a tort case?

Answer 1

The remedy they hope to obtain

Question 2

What are some examples of harm claimants may suffer in negligence cases?

Answer 2

Damage to property (e.g., a damaged car), personal injury (e.g., a broken leg)

Question 3

What is the difference between compensatory damages and nominal damages?

Answer 3

• Compensatory damages aim to compensate for actual losses suffered.
• Nominal damages are a token amount awarded when rights are infringed but no actual loss is proven.

Question 4

Provide an example where nominal damages might be awarded.

Answer 4

A neighbor repeatedly walks across your lawn, causing no damage but infringing on your property rights. Nominal damages acknowledge the trespass.

Question 5

What is the purpose of an award of damages in tort?

Answer 5

To put the claimant back in the same position they would have been in if the tort had not been committed

Question 6

Explain the concept of mitigation of loss.

Answer 6

The claimant has a duty to take reasonable steps to minimize their losses. They cannot claim for losses they could have avoided.

Question 7

Provide examples of mitigation of loss.

Answer 7

A claimant who loses their job due to the defendant’s actions should seek new employment; a claimant needing a vehicle should replace or hire one.

Question 8

What is the one action rule?

Answer 8

A claimant can only bring one claim based on one set of facts. The court must award a single lump sum for all past and future losses.

Question 9

Differentiate between special damages and general damages.

Answer 9

• Special damages are precisely calculable financial losses incurred before trial (e.g., loss of earnings).
• General damages are losses not precisely calculable and left to the court’s discretion (e.g., pain and suffering).

Question 10

What are the two categories used by courts to award compensation for personal injury?

Answer 10

Pecuniary losses and non-pecuniary losses

Question 11

What are pecuniary losses?

Answer 11

Losses capable of mathematical calculation in money terms, incurred pre- or post-trial (e.g., loss of earnings, medical expenses).

Question 12

What are non-pecuniary losses?

Answer 12

Losses not capable of being calculated in money terms (e.g., pain and suffering, loss of amenity).

Question 13

What does “loss of amenity” encompass?

Answer 13

Loss of enjoyment of life, including loss of freedom of movement, sight, smell, hobbies, marriage prospects, etc.

Question 14

Explain the test for awarding damages for pain and suffering.

Answer 14

Subjective test - The claimant must be aware of the injuries. For example, an unconscious person cannot claim for pain and suffering during that time. (Case: Wise v Kaye 1 QB 638)

Question 15

Explain the test for awarding damages for loss of amenity.

Answer 15

Objective test - The claimant can recover regardless of consciousness. (Case: West v Shephard AC 326)

Question 16

What resource do lawyers use to estimate non-pecuniary damages?

Answer 16

The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases and practitioner texts like Kemp on Damages, which provide a range of awards in comparable cases.

Question 17

How are medical expenses assessed?

Answer 17

Pre-trial expenses are special damages and are calculated by adding all costs. Post-trial expenses are general damages and are estimated based on the annual cost and treatment duration.

Question 18

Can a claimant who receives free NHS treatment recover the cost of private treatment?

Answer 18

No, damages compensate for actual losses. While a claimant can recover reasonable private treatment costs, they cannot recover the hypothetical cost of private care if they received free NHS treatment.

Question 19

How is loss of earnings pre-trial calculated?

Answer 19

Calculate the claimant’s net earnings (after tax, national insurance, pension contributions) for the period they were unable to work. This is special damages.

Question 20

What factors should be considered when calculating loss of earnings pre-trial?

Answer 20

Include regular overtime, bonuses, and perks like company cars or share options to ensure the claimant is in the same financial position they would have been in.

Question 21

What makes calculating loss of earnings post-trial challenging?

Answer 21

The court must estimate future losses at the trial date, considering factors like whether the claimant can return to work, potential salary increases, and the possibility of future job loss.

Question 22

What is the “multiplicand” in calculating future loss of earnings?

Answer 22

The claimant’s net annual loss at the date of the trial, taking into account likely salary increases (excluding inflation).

Question 23

What is the “multiplier” in calculating future loss of earnings?

Answer 23

The period of future loss, based on the claimant’s pre-accident working life expectancy or the duration they are expected to be unable to work.

Question 24

What is the purpose of the discount rate in calculating future loss of earnings?

Answer 24

It accounts for the interest a claimant can earn on their lump sum award, ensuring they are not overcompensated but also protected against inflation.

Question 25

What is the current discount rate?

Answer 25

-0.25%

Question 26

What are the Ogden tables?

Answer 26

Actuarial tables used by courts to determine the appropriate multiplier based on the claimant’s age and the discount rate.

Question 27

What are “contingencies of life” in calculating future loss of earnings?

Answer 27

Uncertain future events that could affect the claimant’s earnings, such as redundancy or illness, which the court can consider to reduce the multiplier.

Question 28

What are the “lost years” in a personal injury case?

Answer 28

When the claimant’s life expectancy is shortened due to the injury, the “lost years” refer to the period they would have lived and earned income had the accident not occurred.

Question 29

What was established in Pickett v British Rail Engineering AC 136?

Answer 29

Claimants whose life expectancy is reduced can recover loss of future earnings for the “lost years” to provide for their dependents.

Question 30

How are “lost years” earnings adjusted to avoid overcompensation?

Answer 30

The amount the deceased would have spent on themselves is deducted from the multiplicand. A typical deduction is 25% for a person with dependents and 33% for those without.

Question 31

How are future loss of earnings assessed for injured children?

Answer 31

It’s challenging to predict. Approaches include considering parents’ earnings, national average earnings, or the child’s potential in a specific field.

Question 32

Can a claimant recover the cost of services provided due to their injury?

Answer 32

Yes, the claimant can recover the reasonable cost of necessary services, whether provided by professionals or relatives. (Case: Schneider v Eisovitch 2 QB 430)

Question 33

Can the person providing care to the claimant claim directly from the defendant?

Answer 33

No, the duty of care is owed to the injured claimant, not the caregiver. The claimant recovers the cost as part of their damages.

Question 34

How is the cost of care provided by a relative assessed?

Answer 34

The starting point is the carer’s lost earnings, but the cost cannot exceed the market rate for professional services. (Case: Housecroft v Burnett 1 All ER 332)

Question 35

What is “loss of earning capacity”?

Answer 35

Damages awarded when a claimant with continuing disability can still work but faces a real risk of job loss or reduced earning capacity in the future.

Question 36

What is a Smith v Manchester Corporation award?

Answer 36

An award for “loss of earning capacity,” named after the case that established it. (Case: Smith v Manchester Corporation (1974) 17 KIR 1).

Question 37

Can a claimant recover for other pecuniary expenses beyond earnings and medical costs?

Answer 37

Yes, they can recover reasonable costs for damaged property (e.g., clothing, jewelry) incurred due to the accident.

Question 38

Are insurance payments, ill-health pensions, and charitable payments deducted from a claimant’s damages?

Answer 38

No, these payments are not deducted to encourage people to protect themselves and receive support.

Question 39

How are State benefits received by the claimant due to the accident handled?

Answer 39

They are deducted from the claimant’s damages for specific heads of damage (lost earnings, cost of care, loss of mobility), and the defendant is required to reimburse the State. (Social Security (Recovery of Benefits) Act 1997)

Question 40

What are provisional damages?

Answer 40

Damages awarded when there’s a chance of the claimant’s condition deteriorating significantly. If the deterioration occurs, the claimant can return to court for further damages. (Senior Courts Act 1981, s 32A)

Question 41

What are periodic payments?

Answer 41

In certain personal injury cases, damages can be awarded as regular payments instead of a lump sum, particularly when future needs are uncertain. (Damages Act 1996, s 2)

Question 42

What happens to a claimant’s claim if they die before receiving compensation?

Answer 42

The claim survives for the benefit of their estate under the Law Reform (Miscellaneous Provisions) Act 1934.

Question 43

What damages can the estate claim under the 1934 Act?

Answer 43

Non-pecuniary losses (up to death), pecuniary losses (property damage, medical expenses, loss of income up to death), and reasonable funeral expenses paid by the estate.

Question 43

Does the 1934 Act create a new cause of action?

Answer 43

No, it allows existing causes of action to continue after death.

Question 44

What is the purpose of the Fatal Accidents Act 1976?

Answer 44

It allows dependents of the deceased to claim damages for their loss of dependency and bereavement.

Question 45

What are the requirements for a dependent to claim under the 1976 Act?

Answer 45

They must fall within the listed class of dependents (spouse, children, certain relatives) and demonstrate a reasonable expectation of future pecuniary benefit from the deceased.

Question 46

How is the multiplicand for loss of dependency calculated?

Answer 46

Based on the deceased’s net annual earnings, minus their estimated living expenses, plus any other contributions to the household (perks, services).

Question 47

How is the multiplier for loss of dependency determined?

Answer 47

Based on the period for which the dependency would have continued, adjusted using the Ogden tables and the discount rate.

Question 48

Who can claim bereavement damages under the 1976 Act?

Answer 48

Spouse/civil partner, parents of an unmarried minor, or cohabiting partner meeting specific criteria. The amount is fixed (£15,120) and split equally among eligible claimants.

Question 49

Can funeral expenses be claimed under the 1976 Act?

Answer 49

Yes, if paid by the dependents. Funeral expenses paid by the estate are claimed under the 1934 Act.