Damages

Question 1

Types of Damages Awarded

Answer 1

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

Question 2

Elements to Damages for Personal Injury

Answer 2

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)

Question 3

General Approach for Future Pecuniary Loss

Answer 3

Multiplier method - annual loss suffered by C x the number of years the loss is likely to be suffered for

Question 4

Jobling v Associated Diaries

Answer 4

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)

Question 5

Wells v Wells

Answer 5

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

Question 6

s.1 Damages Act 1996

Answer 6

Court is to use the rate of return on investments prescribed by the Lord Chancellor

Question 7

Pickett v British Rail Engineering

Answer 7

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)

Question 8

s.2(1) Damages Act 1996

Answer 8

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

Question 9

Morton v Portal Limited

Answer 9

Court takes into account C’s preferences for periodical payments, but this is NOT decisive - ultimately left to the court’s discretion

Question 10

H West v Shephard

Answer 10

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

Question 11

Kemp & Kemp/Judicial Studies Board

Answer 11

These both set guidelines for the levels of damages to be awarded for non-pecuniary loss

Question 12

Heil v Rankin

Answer 12

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

Question 13

Rowlandson v Merseyside Police

Answer 13

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)

Question 14

Krlaj v McGrath

Answer 14

Courts CANNOT award aggravated damages for negligence

Question 15

s.1(1) Law Reform (Miscellaneous Provisions) Act 1934

Answer 15

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

Question 16

s.1(2)(a) Law Reform (Miscellaneous Provisions) Act 1934

Answer 16

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

Question 17

Hicks v South Yorkshire Police

Answer 17

Level of damages awarded under s.1(1) is likely to be low, especially if C did not suffer much pain or suffering

Question 18

s.1(1) Fatal Accidents Act 1976

Answer 18

Right of dependants of the deceased to bring claims for the deceased’s death due to the tort

Question 19

s.1(3) Fatal Accidents Act 1976

Answer 19

Very specific list of people who constitute a dependant under s.1(1):

• spouse or ex spouse
• parents
• children

Question 20

Franklin v South Eastern Railway

Answer 20

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

Question 21

s.1A Fatal Accidents Act 1976

Answer 21

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

Question 22

Grobbelaar v News Group Newspapers

Answer 22

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

Question 23

Rookes v Barnard

Answer 23

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