Damages

Question 1

Statutory interest

Answer 1

A rate of interest prescribed by a particular piece of legislation.

Question 2

What is the aim of damages in tort?

Answer 2

To put the claimant in the position that they would have been in had it not been for the commission of the tort.

Question 3

What type of damages can be awarded in tort?

Answer 3

1. General damages.
2. Special damages.
3. Interest.

Question 4

What does general damages cover?

Answer 4

Pain, suffering and loss of amenity which are attributable to the injury.
Includes damages for mental anguish suffered, including post traumatic shock.
Includes compensation for the loss of ability to lead a full life e.g., can no longer participate in recreational activities or employment.

Question 5

How are general damages assessed?

Answer 5

Assessment based on medical report, and claimant’s witness evidence.
Usually assessed together.
Awarded as a lump sum, based on the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases.

Question 6

What are special damages?

Answer 6

Damages awarded to put the claimant in the financial position they would have been in, had they not had the injury.

Question 7

What is covered under special damages?

Answer 7

1. Loss of earnings to trial.
2. Loss of future earnings.
3. Loss of earning capacity.
4. Treatment, rehabilitation and care costs.
5. Other losses and expenses.

Question 8

What damages are awarded for loss of future earnings?

Answer 8

Calculated from the date of trial to expected retirement.
Lump sum awarded calculated on Ogden Tables (7th Edition)
Amount is to designed to give the claimant enough money so that if they invested it from trial, it would last the same period of time as the lost earnings (including increases and pay progression).

Question 9

What damages are awarded for loss of earning capacity?

Answer 9

Lump sum to compensate the claimant based on the fact that they may not have suffered actual loss of earnings so far (for example, if they retain their previous job), but their injuries may put them at a disadvantage in the labour market.
Typically between zero and two years’ net loss of earnings.

Question 10

What damages are awarded for treatment, rehabilitation and care costs?

Answer 10

Reimbursement of those incurred to date of trial and a lump sum for future costs.
Lump sum calculated using Ogden Tables (7th Edition).
Includes private medical treatment.
Where care is provided by family members, reasonable expenses and the value of foregone wages by the relative can be claimed.

Question 11

What kind of losses, and other expenses can be covered by specific damages?

Answer 11

Cost of damage to property e.g., damage to clothing, repair, or cleaning costs.
Travel expenses incurred as a result of the accident.
Value of services provided by third parties (such as gardening and household services), which are neccesitated by the accident.

Question 12

How are special damages determined?

Answer 12

Must be pleaded in a schedule of past and future losses and expenses, which must be served with the particulars of claim.
Schedule should contain full details including an estimate of future expenses.

Question 13

What are provisional damages?

Answer 13

Used where the claimant’s prognosis is unclear, because there is a chance of a disease developing or of a deterioration in the claimant’s condition in the future.
Damages assessed on basis that there is no future disease or deterioration, but judgment provides a further award can be made in the future if the situation changes.

Question 14

How are provisional damages assessed?

Answer 14

Assessed on the basis that there is no future disease or deterioration.
Judgment provides that

Question 15

What interest applies in a tort claim?

Answer 15

s35A Senior Courts Act 1981/County Courts Act 1984 - Where damages exceed £200, the court must award interest on the sum awarded unless the court is satisfied that there are special reasons to the contrary.

Question 16

What rate of interest applies to special damages?

Answer 16

Half of the court’s special account rate, from the date of the accident to trial.
Current rate = 6% = 3%

Question 17

What rate of interest applies to general damages?

Answer 17

2% per annum from the date on which the claim form is issued.

Question 18

What rate of interest applies to damages for future losses?

Answer 18

Carry no interest.

Question 19

What is the aim of damages in contractual breach claims?

Answer 19

To put the claimant in the position they would have been in but for the breach.

Question 20

What are the two ways damages are assessed in contractual claims?

Answer 20

1. Loss of Bargain - To restore the claimant to the position they would have been in had the contract been properly performed.
2. To compensate the claimant for expenditure rendered futile by the breach.

Question 21

When is interest payable for a contractual claim, before proceedings are issued?

Answer 21

1. There is a specific contract clause providing for interest; or
2. The Late Payment of Commercial Debts (Interest) Act 1998 applies.

Question 22

When does the Late Payment of Commercial Debts (Interest) Act 1988 apply?

Answer 22

Applies to debts incurred in the course of business.
Business to business only.
Applies immediately, when an invoice remains unpaid outside of the agreed contractual terms without court proceedings being commenced.

Question 23

What interest is payable under the Late Payment of Commercial Debts (Interest) Act 1998?

Answer 23

Interest rate - 8% above the Bank of England base rate for the period the debt falls due.
Can also claim reasonable costs for debt recovery and a fixed charge of up £100 from the debtor.

Question 24

When is interest payable, for a contractual claim after proceedings have been issued?

Answer 24

1. Under an express or implied contractual provision.
2. Under court’s discretion under s35A Senior Courts Act 1981/s69 County Courts Act 1984.

Question 25

What rate of interest applies for a contractual claim, under the courts discretion under s35A SCA 1981/s69 CCA 1984?

Answer 25

8 per cent per annum from the date debt became due until either judgment entered or payment made.
But court has discretion to award interest at such rate it it thinks fit, and to determine the appropriate period for which interest will accrue.

Question 26

In all cases, what steps need to be taken for interest to be awarded?

Answer 26

The claimant must make clear in the particulars of claim if they are seeking interest on any amount awarded by the court and the basis upon which they are entitled to interest.