damages

Question 1

what is damages

Answer 1

Monetary compensation awarded to the claimant

Question 2

The Purpose

Answer 2

To put the Claimant in the position they would have been in had the act or omission not occurred

The claimant is not intended to profit from the situation

Question 3

Mitigation of loss

Answer 3

The claimant has a duty to minimise their loss by taking reasonable action to do so

Question 4

The claim

Answer 4

A claimant can only claim damages once
Barker v Corus (2006)

The amount received can be reduced if the court feels the claimant is partly responsible. This is contributory negligence.

Question 5

special damages

Answer 5

Financial losses up to the date of the trial (Pecuniary losses)
Things which can be given an exact figure
Loss of earnings up to dates of trial will be included– straightforward when claimant has salaried work. When irregular hours they use the last 26 weeks of earnings to find average. Any benefits are deducted

Question 6

General damages

Answer 6

1.Pain, suffering and loss of amenity. Including mental and physical injury and the effect on everyday life. Guidelines are laid down by the Judicial Studies Board. These allow for consistency and help the parties to settle out of court
2. Future medical care and personal assistance

Question 7

general damages- Court takes into many factors when making overall calculations

Answer 7

Time spent in hospital
Loss of expectation of life
Loss of quality of life
Loss of marriage prospects
Whether there is continued pain or discomfort

Question 8

Types of payments

Answer 8

Lump Sum
Structured Settlement

Question 9

lump sum

Answer 9

-Traditional payment method i.e. all in one go.
-The court’s only option if they are awarding for pain, suffering and loss of amenity
-Once only award (claimant can’t come back for more!)
-This can be unfair
-Consider inflation

Question 10

structured settlement

Answer 10

Governed by the Damages Act 1996
Parties who settle a claim can agree that all or part of the damages can be paid periodically (monthly ?)
This is arranged by the Respondant’s insurers who purchase an annuity.
Also allow it to be for life or a fixed time frame (e.g. 10 years)
Allows greater certainty/ security
Good for child that is severely injured
Review periods can be added to ensure real terms value is maintained.
More appropriate when the claimant requires an income from the damages.
Courts have no ability to order structured settlement without agreement on parties.
AND ALL DAMAGES ARE TAX FREE

Question 11

injunctions

Answer 11

An order from the court to stop doing something.
If the person who is given an injunction fails to comply they will be deemed in contempt of court and can be fined or imprisoned for up to 2 years.
Usually perpetual (i.e go on for ever).
Things like stop nuisance to neighbours.