Compensatory damages Flashcards
what are Compensatory Damages?
court award compensation to a successful claimant for the injuries and losses that have been suffered + the damage to property.
what is the aim of Compensatory Damages?
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
what does mitigate the loss mean?
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
what are the 4 types of damages?
- Pecuniary
- Non-pecuniary Loss
- Special Damages
- General Damages
what are Pecuniary damages?
The losses which can be calculated in monetary terms (quantifiable) i.e wages, damage to property.
what are Non-Pecuniary damages?
The losses which cannot be quantified i.e pain, suffering and loss of amenity. These must be assessed at trial
what are Special damages?
(monetary) losses to the date of trial which can be accurately quantified by physical evidence of their worth/value.
what are general damages?
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).
examples of Special damages?
- Loss of wages – although more difficult for self employed
- Emergency medical treatment
- Ambulance charges
- Repair or replacement of damaged goods
cases for special damages?
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.
examples of general damages?
- Pain, suffering and loss of amenity
- Future medical care and personal assistance
- Loss of future earnings
cases for general damages?
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.
what is included in pain, suffering and loss of amenity?
- Physical and mental suffering
- injury itself
- Reduction in the quality of life
- Shortened life span
what is included in future medical care and personal assistance?
- assistance with dressing, washing, shopping, transportation
- family members providing care at a loss of their own income
- paying for personal care i.e nursing
what factors does personal injury damages depend on?
- 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
what is the calculation for damages?
The total value of the general and special damages are added together and then adjusted:
Multiplicand x Multiplier = damage for future loss of earnings
what is the multiplicand?
the multiplicand is the Claimant’s net annual loss
what is the multiplier?
the multiplier is the number of earning years left (which rarely exceeds 18)
what are Nominal damages and Aggravated damages?
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
what are the Methods of payment of damages?
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
advantages + disadvantages of a Lump Sum?
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
what is a structured settlement?
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)
advantages + disadvantages of a Structured Settlement?
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
