Damages Flashcards
Types of Damages Awarded
1) Compensatory damages - to put C back in the position they would have been in had the tort not been committed
2) Exemplary damages - to punish D’s conduct
3) Aggravated damages - extra form of compensatory damages to reflect damaged pride etc. of C
4) Nominal damages - awarded to reflect that a tort has been committed, but C did not actually suffer much damage/was trivial
Elements to Damages for Personal Injury
1) Pecuniary loss - financial loss
2) Non pecuniary loss - to reflect pain and suffering and loss of amenity
Note that future pecuniary losses must be ESTIMATED by the court at the trial (whereas pre-trial losses are usually recoverable in full)
General Approach for Future Pecuniary Loss
Multiplier method - annual loss suffered by C x the number of years the loss is likely to be suffered for
Jobling v Associated Diaries
No damages can be claimed after the point at which a chronic condition would have prevented C from working anyway (C suffered a natural back condition at a similar time to the tort being committed by D)
Wells v Wells
Courts allow for the indexation of investment returns linked with the index-lined government securities index - so basically for any investments, it is indexed with govt. securities index which is a relatively safe form of investment. Reasoning is that it is not expected that C would be making risky/high-return equity-based investments during this time
s.1 Damages Act 1996
Court is to use the rate of return on investments prescribed by the Lord Chancellor
Pickett v British Rail Engineering
If C’s life expectancy is reduced due to the tort, the court also awards damages for C’s lost years, minus C’s expenses during that period (of lost years)
s.2(1) Damages Act 1996
Allows the court to award periodical payments instead of the lump sum, which is the traditional method. This can be done for either part or all of the damages, so it is quite flexible.
Note that periodical payments under s.2(1) are left entirely to the court’s discretion. But three relevant factors for the court to take into account:
1) C’s preference
2) D’s preference
3) Scale of the payment
Morton v Portal Limited
Court takes into account C’s preferences for periodical payments, but this is NOT decisive - ultimately left to the court’s discretion
H West v Shephard
C can still recover loss of amenity damages even if they are in a coma and therefore do not appreciate that they have lost amenity
Kemp & Kemp/Judicial Studies Board
These both set guidelines for the levels of damages to be awarded for non-pecuniary loss
Heil v Rankin
English courts relying on Kemp & Kemp/Judicial Studies Board guidelines had led to damages being awarded that were too low generally. So court said that English law was too low at this point, and the level of damages should be raised by 1/3! Court said this was conclusive, so level of damages have been raised now for non-pecuniary loss
Rowlandson v Merseyside Police
Aggravated damages may be awarded by the court on top of ordinary compensatory damages to reflect the injured pride and dignity of C (due to false imprisonment here)
Krlaj v McGrath
Courts CANNOT award aggravated damages for negligence
s.1(1) Law Reform (Miscellaneous Provisions) Act 1934
The estate of a deceased person due to a tort can bring a claim for personal injury in tort - introduced claims made against D when C has died as a result of the tort
s.1(2)(a) Law Reform (Miscellaneous Provisions) Act 1934
Court cannot award exemplary damages or loss of future earnings under s.1(1) - so even though there is the right to bring a claim on behalf of the deceased’s estate, the claim that can be brought is limited
Hicks v South Yorkshire Police
Level of damages awarded under s.1(1) is likely to be low, especially if C did not suffer much pain or suffering
s.1(1) Fatal Accidents Act 1976
Right of dependants of the deceased to bring claims for the deceased’s death due to the tort
s.1(3) Fatal Accidents Act 1976
Very specific list of people who constitute a dependant under s.1(1):
- spouse or ex spouse
- parents
- children
Franklin v South Eastern Railway
Damage calculation for C’s claim as a dependant under s.1(1) Fatal Accidents Act 1976 is calculated through the multiplier method - benefit that C has already received due to deceased’s death (e.g. life insurance payout) does NOT need to be reduced from the lump sum
s.1A Fatal Accidents Act 1976
Bereavement damages can be claimed under s.1A - one of lump sum of £12,980. This can only be claimed by those under s.1(3) also
Grobbelaar v News Group Newspapers
Courts can award contemptuous damages to reflect the fact that a tort has been committed against C, but C’s conduct was also morally reprehensible.
In this case, C’s damages were reduced to virtually nothing because even though causation was not proven between taking bribes and fixing matches, he was still found to have taken bribes = morally reprehensible
Rookes v Barnard
Exemplary damages in tort are constrained and should only be used in 3 cases, according to Lord Devlin
1) Oppressive conduct by agents of govt.
2) D made calculation to profit from the tort
3) If a statute provides that exemplary damages should be awarded
