Chapter 9 Flashcards
Pain, Suffering and Loss of Amenity
compensate the victim for the physical and psychological pain and suffering, both immediately after the accident and in the future
Loss of Amenity
compensates for the loss of enjoyment or physical/mental limitations due to the injury
Sources for assessing General Damages
• Judicial College Guidelines
• Kemp and Kemp
• Personal Injury Service Publications
Medical Report for General Damages
key evidence of:
• injury’s severity
• duration
• ongoing symptoms
• potential future complications
Acceleration Case in Personal Injury Law
an injury brings forward symptoms of a pre-existing condition, entitling the claimant to recover only for the period of acceleration
Acceleration V Eggshell Rule
in acceleration, the claimant would have suffered similar symptoms eventually
the eggshell fuel compensates for all consequences of the injury, even if the claimant was more vulnerable
Smith and Manchester Claim
a type of damages awarded to a claimant who is disabled by an accident but still able to work, compensating for potential future difficulties in the labour market
Smith and Manchester Proof
they must prove a substantial or real risk of losing their current job or difficulty finding another job at the same pay level
Moeliker v. Reyrolle (1977)
- determine if there is a real risk the claimant will lose their job before retirement
- assess the financial impact if that risk materialises
Smith and Manchester Claims Quantified
courts base calculations on a multiplier of the claimant’s net earnings, typically ranging from three months to two years of salary
Industries that may see a higher risk of handicap
industries involving physical labour, where a disability might significantly reduce a worker’s employability
“Future” in the context of “Future Loss of Earnings”
it applies from the date of the trial, as losses up to that point can be calculated accurately and awarded as special damages
Future Loss of Earnings Evidence
some form of permanent disability or a disability that will last into the future
Future Losses
• total loss of earnings
• partial loss
• needing a less strenuous job for less pay
Multiplicand
the difference between the claimant’s current annual net income and their pre-accident net income
adjusted for future wage increases or promotions
Multiplier
the number of years from the date of trial until the claimant’s likely retirement age
Actuarial Tool to determine The Multiplier
The Ogden Tables
Significant Change by the Civil Liability Act 2018
new rules for calculating the discount rate and a requirement for more regular reviews
Discount Rate
it reflects the return a claimant can expect from investing their damages
affects the lump sum awarded for future loss of earnings
Discount Rate Change
2.5% changed to -0.75%, effective from March 2017
Increased to -0.25% following an extensive review in 2019
Loss of Congenial Employment
compensation for losing job satisfaction, particularly when a person must replace a satisfying job with less fulfilling work
it used to be compensated for within pain, suffering and loss of amenity
Morris v. Johnson Matthey & Co. Ltd (1967)
compensating for the loss of craft in congenial employment
Leading Case for Loss of Congenial Employment
Blamey (1988), where a fireman received £3,250
Occupations for Loss of Congenial Employment
occupations with a vocational element, such as nurse, doctor or priest
Kemp and Kemp, The Quantum of Damages
Table of Awards for Loss of Congenial Employment
Future Cost of Care and Specialist Equipment
the same principles as calculating care and services rendered between injury and trial, using the multiplier and multiplicand approach
Items of Specific Loss
one-time losses such as damage to clothing during an accident
needs to prove receipts or evidence of the loss
indemnity settlement = an allowance for wear and tear deducted
Most common Head of Special Damages
loss of earnings up to the date of trial
Lost Wages Calculation
multiply the pre-accident average net weekly by the number of weeks the claimant suffered a loss
Average Weekly Wage Loss
13 week period immediately prior to the accident
take the total net pay for the 13 weeks and divide it by 13, adjusting for overtime, bonuses and seasonal fluctuations
Self-Employed Loss of Earnings
use their book of accounts and tax returns to calculate
Tax Refunds and Affecting Loss of Earnings Calculations
tax refunds or credits due to reduced earnings must be accounted for and credited in the calculation
Statutory Sick Pay in Loss of Earnings
unless the employment contract requires repayment, statutory sick pay should not be deducted
Redundancy Payments in Loss of Earnings
can be deducted from damages if the claimant is made redundant due to their injuries
Parry v. Cleaver (1978)
pensions should not be deducted from loss of earnings claims because they are part of the employee’s remuneration package
Law Reform (Miscellaneous Provisions) Act 1934
gives the estate of the deceased the right to claim damages from the date of the accident to the date of death
including
• pain and suffering
• loss of income
• special damages for property damage
Administration of Justice Act 1982
damages for “awareness of reduced life expectancy” when there is a time-lag between accident and death
Claim when Death is Instantaneous
there must be a period of survival and awareness of impending death for a valid claim under this head
Special Property Loss
damages for loss or damage to personal property such as vehicles, clothes and personal possessions damaged in the accident
Fatal Accidents Act 1976
dependents of the deceased can make a personal claim for financial losses, bereavement damages and funeral expenses
Dependents under the Fatal Accident Act 1976
• spouse
• civil partner
• children
• parents
• others treated as family
Changes in Earning Capacity
potential promotion or redundancy
Household-Related Claims needed to be included in the Multiplicand
• household maintenance
• housekeeping
• child care
• caring for a sick relative
• perks like a company care or private health insurance
Section 4 of the Fatal Accidents Act 1976 - Benefits
benefits like life insurance, pensions and proceeds from the deceased’s estate must be disregarded when calculating damages
Section 4 of the Fatal Accidents Act 1976 - Benefits
benefits like life insurance, pensions and proceeds from the deceased’s estate must be disregarded when calculating damages
Contributory Negligence under the Fatal Accidents Act 1976
damages will be reduced if the deceased was partly responsible for their own death
Provisional Damages
awarded when there is a risk of future deterioration of the claimant’s condition
the claim must be pleaded, a serious disease must be possible and the claimant must apply for additional damages
Section 3 of the Damages Act 1996
provisional damages do not bar an action by dependents under the Fatal Accidents Act 1976, if the claimant dies from the same cause
Types of Rehabilitation
• Medial (injury treatment)
• Vocational (alternative employment)
• Qualitative (enhancing impaired capabilities)
Rehabilitation Code 1999
to promote the use of rehabilitation services in settling personal injury claims and to restore claimants’ quality of line and earning capacity
Compensation Recovery Unit (CRU)
recovers social security benefits paid due to an accident or injury and costs incurred by NHS hospitals and Ambulance Trusts for treatment
Costs to Consider
• defence costs
• claimant’s costs
• coverage costs
• an element for interest in their reserve/valuation
Periodic Payment Order (PPO)
a court-ordered arrangement for personal injury damages, typically involving regular annual payments to cover future costs like care
PPO main components
• a lump sum for capital assets and future contingencies
• annual periodic payments to cover ongoing costs like care
Which Law can Courts impose PPOs
Section 2(1) of the Damages Act 1996, as amended by the Courts Act 2003, gives courts the power to impose PPOs for future pecuniary loss in personal injury cases
PPOs common use
common in maximum severity clinical negligence cases, particularly with brain-injured children or catastrophic injuries in PI claims
PPOs Challenges
• PPOs transfer mortality and investment risk from the claimant to the insurer, requiring careful reserve management and solvency planning
• must hold appropriate reserves and meet solvency requirements to manage the long-term financial risks
Medical Experts
• neurosurgeon
• psychiatrist
• rehabilitation specialist
• care specialist
