Chapter 6: Remedies Flashcards
- Introduction
In tort there are two principal remedies that a court can award in a successful action, namely
damages and injunctions.
Injunction: An injunction is an order forcing the defendant to act or preventing the defendant
from acting in a certain way. They are rare and only suitable for certain kinds of cases, for
example, in land-based torts.
Damages: Damages means an award of money. It is by far the most common remedy for a
claim in tort. This chapter focuses on damages
1.1 Damages
Generally, in tort actions, a claimant will be seeking compensation for the wrong perpetrated on
them and any consequences that have followed from that wrong. This is achieved by awarding
compensatory damages. The aim of damages in the law of tort is to put the claimant in the position they would have been in but for the defendant’s tortious act, as far as this is possible with an award of money. It is backwards looking, seeking to restore the claimant to the position before the tort happened.
Compensatory damages
Damages awarded to compensate the claimant for the harm they
have suffered. The vast majority of awards of damages in tort claims are awards of compensatory damages.
1.1.1 General and special damages
Compensatory damages are subdivided into two categories: general damages and special
damages.
- Special damages cover specifically provable and quantifiable financial losses at the time of
trial. For example, loss of earnings incurred before trial. - General damages cover future financial losses, which cannot be specifically proven, and nonquantifiable losses such as compensation for physical injury.
Example
A motorist is involved in a serious car accident due to the negligence of another driver. They suffer
the following types of damage:
(a) Spinal injuries keeping them off work up to the date of trial. They lose earnings.
(b) The spinal injuries will keep them off work for six months after the trial and will reduce the
amount of work they can do in the future permanently.
(c) Their car needed to be repaired – by the time of trial, this has happened.
(d) In the near future, they will need to adapt their house because they cannot manage certain
steps due to their injury.
(e) They suffer pain during the accident, since the accident and continuing into the future.
Special damages
In this example, this includes:
- Loss of earnings resulting from the injury up to the date of trial – the claimant can work out
what earnings they have lost. Earnings are awarded net of tax and are non-taxable. - Known cost of repairing the car.
- Any expenses that the claimant has incurred in relation to medical care up to the date of trial.
General damages
In this example, this includes:
- Compensation for the pain and suffering. The pain and suffering are non-quantifiable in
money terms, but money is provided to compensate for them. The technical term for this is the
award for ‘pain, suffering and loss of amenity’. - Loss of earnings after the date of the trial.
- Cost of adapting house.
- Any medical expenses that the claimant will incur after the date of the trial.
1.1.2 General damages: Pain, suffering and loss of amenity award (PSLA)
There are two parts to this award. The element of ‘pain and suffering’ covers just that, whereas
the ‘loss of amenity’ attempts to compensate for the effect of the injury on the claimant’s
lifestyle, for example if they can no longer swim or walk. The size of the ‘loss of amenity’ element
of the award will, of course, depend on how active the claimant was prior to the injury and what
they have been prevented from doing as a result of the injury.
This is awarded as a single lump sum
1.1.3 General damages: Calculation of future losses (Multiplier Approach)
The situation is more complex when there is a continuing loss such as future loss of earnings or
recurring expenses of medical treatment or care. The basic approach is to take the annual
expense and multiply it by the number of years the loss will continue to be suffered. This is known as the multiplier/multiplicand approach
If an actual number of years were to be used as a multiplier, the sum awarded, when invested, would result in the claimant being massively
over-compensated
1.2 Deductions from damages
Once the damages have been calculated it may be appropriate to make one or more of the
following deductions from the sum assessed:
- Any state benefits received by the claimant as a result of their injury, such as unemployment benefit if they have been prevented from working. State benefits can be deducted from
compensation for lost earnings; cost of care; and loss of mobility. The defendant pays the amount deducted back to the State. - Any contractual sick pay they have received as a result of their injury.
- Any redundancy payment, if the redundancy resulted from the injury.
The overall sum reached may be further reduced by virtue of any finding of contributory
negligence. Insurance pay-outs, ill-health pensions and any sums received by way of gifts or charity will not be deducted.
1.3 Damages when the claimant dies
Legislation: Law Reform (Miscellaneous Provisions) Act 1934
- Under this Act the ‘estate’ (ie legal representatives of the deceased person) may bring a claim
for any losses (both pecuniary and non-pecuniary) suffered by the deceased as a result of an
accident up to the date of death. This will be calculated on the same basis as a normal personal injury award. No claim can be made for any losses that might have arisen after the
date of death (s 1(2)(a)).
No claim for death itself: * Note that there is no claim for the death itself. Nor can someone who is going to die as a result of a tort, but has not yet died (eg someone negligently exposed to a fatal disease but who has not yet died from it) claim for their loss of life expectancy.
Legislation: Fatal Accidents Act 1976 (for dependents)
- This Act allows for any dependants of the deceased (ie people who depended on the deceased) to claim for any losses suffered as a result of the death. For example, a claim by a
family when the deceased was earning wages which were shared with the family, and the family has now lost that support. - The Act defines dependants as close blood relations and those related by marriage or who have cohabited for over two years (s 1(3)). Their claim is assessed in much the same way as a personal injury claim. Their losses arising from the date of the death to the date of assessment will be specifically calculated and any loss continuing after the date will be awarded, either as a lump sum or on a multiplier/multiplicand basis as appropriate.
- As the court is trying to cope with even more uncertainties in this sort of claim (primarily because it will be dealing with the future of a number of dependants rather than just a victim) multipliers will be lower than in personal injury cases.
Legislation: Fatal Accidents Act 1976 (for dependents)
The spouse, civil partner or cohabiting partner of the deceased or the parents of an unmarried minor (the mother only if the child is illegitimate) to claim bereavement damages. The amount payable is a specified fixed sum. See s 1A. The cohabiting partner must have been living with the deceased at the time of the death and for at least two years before that date; and
- Recovery of funeral expenses, if paid for by the dependents.
1.4 Summary
- Damages for torts are normally awarded on the compensatory basis – to put the claimant in
the position they would have been had the tort not happened. - Damages can be categorised into:
- Special damages: specifically provable and quantifiable financial losses, such as lost
earnings prior to trial; and - General damages: future financial losses (such as future loss of earnings) and nonquantifiable losses (such as pain, suffering and loss of amenity).
- If someone dies as a result of a tort:
- Under the Law Reform (Miscellaneous Provisions) Act 1934, their estate can claim for any
losses suffered by the deceased up to the date of death. - Under the Fatal Accidents Act 1976, certain family members may be able to claim compensation if they depended on the deceased. They may also be able to claim a bereavement award and/or funeral expenses.
