Chapter 8 Flashcards
How to prove Financial Value
by reference to accounts, invoices or other documents
Measure of Damages in an action for trespass
the decrease in the value of the land, and if applicable, a claim for loss of use of enjoyment is denied
Measure of Damages for Buildings
the cost of repair, less a deduction for betterment
Building Destroyed measure of damages
by reinstatement cost less betterment, though sometimes market value
Imperial College of Science and Technology v. Norman and Dawbarn (1987)
betterment is not deducted for buildings but is dedicated for chattels (content and personal possessions)
when can a claimant also claim for loss of profit during repairs to their property
if the property has profit-earning capacity and the closure period was necessary and reasonable
CR Taylor v. Hepworths Ltd (1977)
the court will not allow the claimant to profit from their loss
in this case, no damages were awarded because the defendants’ actions saved the claimants demolition costs, exceeding the diminution in value
Non-Building Property Claims Settlement
on an indemnity basis, with replacement cost less an allowance for wear and tear
Damaged Stock Value Calculations
based on the original cost of the stock, not the retail value, with consideration for age and season
Dodd Properties (Kent) Ltd v. Canterbury City Council (1980)
the court allowed the claimants to claim current costs due to the defendants wrongfully maintaining a denial until just before trial
Injunction
an order by the court requiring the defendant to refrain from a certain action, often used in cases of nuisance or trespass
Damages in Legal Terms
a monetary sum awarded to compensate the claimant for loss, injury, or damage, aiming to restore their pre-accident position
Nominal Damages
small damages awarded as recognition that a tort has been committed, even if no real loss occurred
Exemplary or Punitive Damages
damages awarded to punish the defendant for outrageous or deplorable conduct, not for compensation
excluded from UK policies
General Damages
compensation for losses that cannot be measured mathematically
Special Damages
compensation for financial losses up to the date of trial, which can be calculated precisely
Industrial Disease Claims
long-tail liability claims
Key Issues in Long-Tail Liability investigations
• policy trigger
• previous insurers
• employment conditions at the time
• medical evidence
Role of the last insurer on risk in industrial diseases claims
typically coordinates with other insurers and corresponds with the claimant
Liability Factors
• negligence
• breach of statutory duty
• contributory negligence
Investigating Liability
• witness statements
• safety records
• accident reports
• medical records
• previous accidents
Additional Help in an Investigation
claims handlers may consult experts, such as safety consultants, if there is a dispute over safety measured
Contributory Negligence
it refers to the possibility that the claimant may have partly contributed to their own injury or loss
Two Capacities of Lawyers
coverage and defence
Why would separate firms of lawyers be required for coverage and defence
to avoid conflicts of interest between the insurer and the policy holder, especially if there are coverage concerns
Why would separate firms of lawyers be required for coverage and defence
to avoid conflicts of interest between the insurer and the policy holder, especially if there are coverage concerns
Defence Lawyer
• provide a defence for the insured
• assess liability and quantum
• negotiate settlement with the claimant’s lawyers
Coverage Lawyer
• advise on policy coverage
• investigate the circumstances of the third-party claim
• report to the insurer
Best Practice when a Conflict of Interest between defence and coverage arises
appoint separate lawyers
preferably from separate firms
Solicitors Regulation Authority Conduct Rules
dealing with and avoiding conflicts of interest between insurer and policyholder
In which Jurisdiction are insurers required to provide separate counsel for the insured if there are coverage concerns
California
Dispute with the insured has arose regarding coverage
it becomes a separate matter from the original claim
