Damages Flashcards
What is the aim of damages in tort?
Put C in the position had the the tort not been committed (restore C to original position)
What steps should C take to satisfy their duty to mitigate?
- Look for alternative employment
- replace vehicle
- not unreasonably refuse medical treatment
If fails to mitigate, D does not have to compensate for loss
What is the one action rule?
GR: C can only bring one claim based on one set of facts. The court will award a single lump sum for prior and future losses
EXCEPTION:
1. provisional damages if chance of serious deterioration (blindness) which may or may not happen. C can recover everything except for thing which may or may not happen. Can go back to court later to recover if it does occur.
2. periodic payment of personal injury damages
What are the 2 types of compensatory damages?
- Special Damages: specifically provable and quantifiable before date of trial
- General Damages: future loss AND non-quantifiables losses
What 2 categories of losses will C receive for personal injury?
Pecuniary: capable of mathematical calculation (pre or post trial)
Non-pecuniary: PSLA
What is compensation for pain and suffering?
Compensation for pain C suffers as a result of the injury
* Past present and future pain / physical and mental anguish / fear of future surgery
* Anguish knowing their life expectancy has been shortened
Is pain and suffering awarded on an objective or subjective basis?
SUBJECTIVE TEST: C must be aware of the injuries (unavailable whilst unconscious / dies instantly)
What do damages for loss of amenity include?
Compensation for the effect of the injury on C’s lifestyle (if active will receive more)
Is loss of amenity awarded on an objective or subjective basis?
Objective: C can recover even if unconcious
How are damages for PSLA calculated?
Kemp and Judicial College Guidelnes to find similar cases to obtain rough figure court is likely to award
Can C recover for private medical treatment
Yes, provided reasonable
How are loss of earnings incurred pre-trial calculated?
Lump sum totalling net loss of earnings until date of trial. Includes:
* take home pay
* regular bonuses
* perks
How are loss of earnings post trial calculated
(loss of earnings (including likely increases)) x (number of years loss will be suffered amended by dicount rate (Ogden tables))
If C’s life expectancy is reduced can they recover for loss of earnings?
Lost years
Yes for the lost years (period could have worked but instead dead).
However, this will be reduced by the amount C would have spent on themselves.
* if children, deduct 25% of annual earnings
* if no children, deduct 33% annual earnings
If C is a child and will never be able to work how will their loss of earnings be calculated
wage of parents, average wage or areas of potential
Can C recover costs of services they can no longer provide such as housework / shopping / gardening / laundry / nursing care
Yes
How much can C claim for nursing care
Commercial rate (even if given free by family member or family member gives up job)
When will a sum be awarded for loss of earning capacity (chance they may lose their job)?
- C is injured but still working in original job; AND
- There is a real risk of C losing their job
What sums can and cannot be deducted from an award to C?
- State benefits can be deducted (not from PSLA) and D must pay amount to the State
- Contractual sick pay received as a result of their injury
- redundancy payment if redundancy results from their injury
Insurance, ill health pension and charitable payments cannot be deducted
When can C’s estate bring a claim for losses suffered by C or loss of dependency or bereavement damages?
C has not been made an award before death
When can dependents claim damages for loss of dependency?
- Spouse, civil partner, cohabitee at least 2 years, parent, child or sibling; and
- Dependent was actually financially dependent on C (reasonable expectation of pecuniary benefit)
- No successful claim made by C before death
How is loss of dependency calculated?
(Actual amount dependent OR net earnings minus 33% or 25%) x (period of expected dependency)
No account is taken of inheritance or prospects or remarriage
When will bereavement damages be awarded?
Spouse
Civil Partner
Parents of minor (not mother unless illegitimate)
Cohabitor: living with C at date of death + for at least 2 years before + as spouse
