DAMAGES Flashcards
WHAT ARE DAMAGES?
Damages are a sum of money that a defendant has to pay a successful claimant
WHAT IS QUANTUM?
The amount of damages awarded which is a matter for the court’s discretion
WHAT ARE THE TWO CIRCUMSTANCES IN WHICH THE QUANTUM WILL BE VERY LOW?
- Nominal damages
- Contemptuous damages
WHEN ARE NOMINAL DAMAGES AWARDED?
If a tort has been committed but the claimant suffered minimal or no loss
WHEN ARE CONTEMPTUOUS DAMAGES AWARDED?
These acknowledge that a claimant’s rights have been infringed, but indicate that the claimant wasted the court’s time in bringing the action so the amount awarded is the lowest coin of the realm – one penny
WHAT ARE THE TWO BROAD CATEGORIES OF COMPENSATORY DAMAGES?
- Special damages – these can be precisely quantified at the date of the trial
- General damages – these cannot be precisely quantified at the date of the trial
WHEN ARE SPECIAL DAMAGES AWARDED?
Special damages are for quantifiable financial loss which the claimant can prove were incurred as a consequence of the tort and before trial
WHAT ARE EIGHT EXAMPLES OF SPECIAL DAMAGES?
- Transport costs to and from hospital
- Private medical treatment until the date of trial
- Loss of the claimant’s net earnings
- Financial losses
- Special equipment that was necessary because of the claimant’s injuries
- The cost of repairing or replacing items that were destroyed or damages by the tort
- Pure economic loss arising from negligent misstatement
- Any insurance excess that was paid by the claimant
WHAT ARE GENERAL DAMAGES?
General damages are those that are not capable of precise calculation at the date of the trial
WHAT ARE THE TWO TYPES OF GENERAL DAMAGES AWARDED FOR PERSONAL INJURY CASES?
- Pain and suffering
- Loss of amenity
WHAT DOES PAIN AND SUFFERING ENCOMPASS?
Physical pain, recognised psychological injuries and distress caused
WHAT DOES LOSS OF AMENITY ENCOMPASS?
Loss of enjoyment of holidays, impaired sex life, inability to play with ones children etc
WHAT TWO TEXTS ASSIST PRACTITIONERS IN ARRIVING AT A FIGURE FOR DAMAGES?
- The Judicial College Guideline which categorises injuries by type and then by severity.
- Kemp & Kemp which gives more detailed accounts of recent awards.
HOW DO LAWYERS ‘MEASURE’ PAIN AND SUFFERING?
By determining the type and severity of the injury
IN RESPECT OF PERSONAL INJURY CASES, HOW IS FUTURE LOSS OF EARNINGS CALCULATED?
This is calculated based upon the claimant’s annual net income before the tort, adjusted to reflect future career prospects (the multiplicand) and a multiplier based upon their age. The multiplier reflects the number of years for which they could have been expected to continue to earn the income had they not suffered injury
WHEN CAN ‘LOST YEARS’ BE CLAIMED?
If the injury has shortened the claimant’s life expectancy
The sum awarded will be a reflection of the amount they would have expected to earn during those years minus an allowance for the living expenses they would have been expected to incur during that time
WHAT ARE THE TWO KINDS OF CLAIM THAT CAN BE MADE IF A CLAIMANT DIES?
- One for the claimant’s estate
- One for the dependant’s in their own right
HOW MUCH CAN THE PERSONAL REPRESENTATIVES OF THE DECEASED RECOVER?
Under the Law Reform (Miscellaneous Provisions) Act 1934, the personal representatives of the deceased claimant may recover for the claimant’s estate everything the claimant would have claimed had they been alive
The claim cannot include damages for future loss of earning or any lost years
WHEN CAN A DEPENDANT OF A DECEASED CLAIMANT SUE FOR THIER OWN FINANCIAL LOSSES?
Only if they contributed to the household’s income (Fatal Accidents Act 1976)
WHAT CAN A SURVIVING SPOUSE, CIVIL PARTNER OR PARENT CLAIM UNDER S1A FATAL ACCIDENTS ACT 1976?
A separate sum of £12,980 bereavement damages for respectively, the loss of a spouse, civil partner, or child who was under the age of 18 and unmarried at the time of death.
If the deceased was a legitimate child under the age of 18, the damages must be divided equally between their parents. If the deceased was an illegitimate child, the damages are awarded to their mother
WHAT DID SMITH V LANACSHIRE TEACHING HOSPITALS [2017] HOLD IN RESPECT OF S1A FATAL ACCIDENTS ACT 1976?
S1A Fatal Accidents Act 1976 did not include in the list cohabitees who have been living with the deceased as husband, wife or civil partner for at least two years
WHAT IS THE LARGEST HEAD OF POST-DEATH DAMAGES UNDER THE FATAL ACCIDENTS ACT 1976?
The dependency award.
This is the only part that reflects future loss of earnings and measures the proportion of future loss earnings that would be spent on any dependants and divided between them
