Damages Flashcards
Lecture 9
Provide the various remedies available in tort law.
- Damages: primary form of remedy in most instances (especially negligence)
- Injunctions: the other main form of remedy available (note the ability of the court to award damages in lieu of injunction)
- Some limited tort specific remedies also available (e.g., abatement in nuisance claims)
Provide the different forms of damages. (part 1)
- Compensatory: try and make good the loss insodar as this is possible in financial terms
- Exemplary: higher than usual sum is paid, usually as a ‘punishment’
- Contemptuous: where claim results in a lesser sum that usual as an indication of the court’s displeasure than it was brought
Provide the different forms of damages. (part 2)
- Aggravated: higher sum awarded to specific claimant to reflect fact that they have suffered to a greater degree than expected
- Nominal: a legal wrong has been committed but no loss suffered
What are the differences between special damages and general damages in personal injury case
- Special calculated at time of trial and are presented to the court in the form of calculation
- General not capable of being calculated at the time of the trial so are left to the court to quantify
What is the difference between pecuniary losses and non-pecuniary losses?
- Pecuniary: capable of being quantified in financial terms (i.e., past medical care, can claim for 3rd party costs)
- Prospective losses: dealt with by calculation and covers future loss of earnings + future medical treatments [pecuniary]
- Non-pecuniary: pain and suffering; loss of amenity; bereavement; loss of marriage prospects; loss of congenial employment; psychiatric injury
Typically, damages are awarded in “lump sum”. Provide advantages (+) and disadvantages (-) for this.
- (+) closure, no sum to manage and C has control of funds and can plan accordingly
- (-) C might spend it on something else? What if C gets better/worse? Inflation? Risk of under/overcompensation?
What are periodical payments and how are they are significant?
- The court can order that payments are made periodically (regularly by the defendant/his insurer)
- Has to be satisfied that funds are there
- Flexible (can last for the lifetime of claimant)
- Increase or decrease?
- Can be expensive to facilitate as it often needs someone in charge of managing funds
What are provisional damages and how are they significant? (Senior Courts Act 1981)
- If a deterioration develops at some point in the future
- Must be pleaded
- Wilson v MOD: must be a chance of serious disease or deterioration, within a defined period
How would you work out future earnings in pecuinary loss?
- Multiplicand x Multiplier
- Multiplicand: what is the annual net loss?
- Multiplier: considers the “contingencies of life”
- (there may be more than one or it may be staggered to take into account promotion etc)
What about discount rates in pecuinary loss? (future earnings link)
- Discount rate: annual presumed interest rate after tax and inflation, based on the ‘Ogden Tables’
- Wells v Wells: formally approved use of Ogden tables, different tables for different ages, pension pay out dates and genders etc.
- Problem: claimants were being uncompensated
In the case of Pickett v British Railway Engineering Ltd, what did the HOL decide about loss of future earnings regarding shortened life expectancy.
Damages can still be calculated on the basis of what the claimant would have earned had those years not been lost less an amount to reflect what he would have spent on himself.
What can deductions be made in respect of for non-pecuniary losses? (and those not in respect of)
- Voluntary payments made by the defendant {Williams v BOC}
- Sick pay {Hussain v New Taplow}
- Social security benefits {Social Security Act 1997}
NOT in respect of: insurance payouts; income from pension funds; charitable donations {Parry v Cleaver}
Summarise what non-pecuniary losses are and the tests involved.
- Related to injury and any subsequent problems (including surgery)
- Award is subjective (claimant must be aware of condition)
- Unconscious claimants - unaware, not pain and suffering
- Section 1(1)(b) of the Administrative of Justice Act 1982 loss of expectation of life
What test is used for loss of amenity for non-pecuniary loss? (damage for loss of enjoyment of life)
- Damages for loss of enjoyment of life
- Unconscious claimants can recover under this heading as objective test applied
