Compensatory damages

Question 1

what are Compensatory Damages?

Answer 1

court award compensation to a successful claimant for the injuries and losses that have been suffered + the damage to property.

Question 2

what is the aim of Compensatory Damages?

Answer 2

Put the claimant in the position they would have been in had the event not occurred
(restitutio in integrum)
this includes actual losses, future losses and the injury

Question 3

what does mitigate the loss mean?

Answer 3

C. must take all reasonable steps to minimise the loss
D. not liable to compensate the claimant for any losses that could have been prevented

Question 4

what are the 4 types of damages?

Answer 4

• Pecuniary
• Non-pecuniary Loss
• Special Damages
• General Damages

Question 5

what are Pecuniary damages?

Answer 5

The losses which can be calculated in monetary terms (quantifiable) i.e wages, damage to property.

Question 6

what are Non-Pecuniary damages?

Answer 6

The losses which cannot be quantified i.e pain, suffering and loss of amenity. These must be assessed at trial

Question 7

what are Special damages?

Answer 7

(monetary) losses to the date of trial which can be accurately quantified by physical evidence of their worth/value.

Question 8

what are general damages?

Answer 8

Non-pecuniary losses that cannot be accurately quantified at the date of trial and any future pecuniary or non-pecuniary losses.
The judge must ‘assess’ these using medical evidence of the effect of the injury and how long it will take to recover (if at all).

Question 9

examples of Special damages?

Answer 9

• Loss of wages – although more difficult for self employed
• Emergency medical treatment
• Ambulance charges
• Repair or replacement of damaged goods

Question 10

cases for special damages?

Answer 10

Cunningham case: C. said that he needed a housekeeper and two nurses to live in his home and look after him court refused to allow this claim
Donnelly case: C. successful in claiming the financial loss that his mother had suffered as a result of him having to care for him.

Question 11

examples of general damages?

Answer 11

• Pain, suffering and loss of amenity
• Future medical care and personal assistance
• Loss of future earnings

Question 12

cases for general damages?

Answer 12

West case : C. 41 when she suffered a severe head injury. Although she could not speak, there was evidence from her eye movements that she understood her predicament and so she received a high award for loss of amenity.

Question 13

what is included in pain, suffering and loss of amenity?

Answer 13

• Physical and mental suffering
• injury itself
• Reduction in the quality of life
• Shortened life span

Question 14

what is included in future medical care and personal assistance?

Answer 14

• assistance with dressing, washing, shopping, transportation
• family members providing care at a loss of their own income
• paying for personal care i.e nursing

Question 15

what factors does personal injury damages depend on?

Answer 15

• The severity of the injury
• The presence and degree of any pain
• How it has affected day-to-day living
• Degree of dependence on others
• How long the symptoms will last
• Any other side effects being experienced, eg depression
• Ability to continue working
• Age and life expectancy

Question 16

what is the calculation for damages?

Answer 16

The total value of the general and special damages are added together and then adjusted:

Multiplicand x Multiplier = damage for future loss of earnings

Question 17

what is the multiplicand?

Answer 17

the multiplicand is the Claimant’s net annual loss

Question 18

what is the multiplier?

Answer 18

the multiplier is the number of earning years left (which rarely exceeds 18)

Question 19

what are Nominal damages and Aggravated damages?

Answer 19

Nominal damages - minimal amount … little or no damage but the claimant is entitled to make a claim.

Aggravated damages - injury aggravated by the defendant’s conduct increases the amount of damages eg humiliation or hurt feelings

Question 20

what are the Methods of payment of damages?

Answer 20

Lump Sum (on conclusion of the trial)
Payment made in full

Interim Payments (before trial)
Paid on account where liability not disputed but the quantum of the claim has not been decided and needed to meet needs eg home adjustments

Periodic Payments via a structured settlement
Regular payments eg monthly or annually

Question 21

advantages + disadvantages of a Lump Sum?

Answer 21

Advantages:
- The claimant use the money in any what they wish.
- If the claimant made an unexpected recovery or died before the age at which expected to have worked, there was a “gain” to the claimant (and their Estate)
Disadvantages:
- If the money is spent; future needs might not be met.
- If the claimant lives longer than expected, the money will run out

Question 22

what is a structured settlement?

Answer 22

The Damages Act 1996 allows for part or all of the claim to be paid by periodical payments where the parties are in agreement (the court cannot impose a structured settlement)

Question 23

advantages + disadvantages of a Structured Settlement?

Answer 23

Advantages:
- greater certainty and security for the claimant
- especially for a child who will need life-long care as it means
- payments can be varied
– the schedule is agreed
Disadvantage:
- Less compensation for claimants who recover earlier than predicted or who die