Damages in Negligence Flashcards
What is the aim of damages?
To return C to their pre-tort position through financial compensation
What is C’s duty in relation to damages?
To mitigate their loss
What are special and general damages?
Special damages can be calculated precisely at date of trial by receipts, items damaged and payslips etc - Pre-trial losses, like loss of earnings
General damages have to be calculated by discretion (includes injuries themselves and future losses) - Pain, suffering and loss of amenity
What are non-pecuniary and pecuniary losses?
Non-pecuniary losses are not capable of being readily calculated in monetary terms - personal injury, loss of amenity etc
Pecuniary losses are those capable of being calculated in monetary terms - lost wages, damaged property etc
How are non-pecuniary losses looked at for personal injury?
Pain and suffering - can include past, present and future pain; C must be aware of them to claim them, so unable to claim if unconscious
Loss of amenity - objectively looks at impact on C’s lifestyle
How are pecuniary losses looked at for personal injury?
Medical expenses:
* Using private healthcare is not failure to mitigate
* Damages are payable where a relative gives up work to provide care. The starting point was the loss of earnings suffered by the carer. However, the costs cannot exceed the commercial rate for providing the services.
Lost income pre-trial
Loss of earning capacity would apply if the claimant was currently still working but would suffer a disadvantage on the job market in the future
Future loss of earnings
How are damages for future loss of earnings calculated?
Multiplier (number of years C would have worked until retirement) multipled by multiplicand (net annual loss to C
Multiplier will be adjusted by Ogden tables at a -0.25% rate, so a 25 year multiplier would become 25.2
Multiplicand can consider promotion potential, minus less paying alternative work if available (£40k promotional salary - £15k lesser rate = £25k multiplicand for the calculation)
How are damages adjusted if C’s life expectancy is impacted by D’s negligence?
C can claim for the ‘lost years’ of earning capacity too
There are deductions on the multiplicand to ensure C is not overcompensated:
- 25% for a person married with dependent children
- 33% for those with no children
What are the two broad claims for damages on C’s death?
- Claim by estate for C’s losses until death (what C could have claimed, but C died before receiving an award of compensation)
- Can include damages for injury, income loss pre-death and funeral expenses if paid by estate
- Damages under this claim go to estate
- Claim by C’s dependants where D’s tort caused death
What are the three claims under the Fatal Accidents Act that C’s dependants can make on their death (with details)?
- Loss of dependency
* Must be one of the following to claim: spouses, civil partners, cohabitees who lived with C for 2 years minimum, parents, children, siblings
* Additionally, must be actually financially dependent on deceased - Money due to be inherited under will is not considered for this - Bereavement
* Fixed sum of £15,120
* Must be one of the following to claim; spouses, civil partners and parents of unmarried minors, cohabitees who lived with C before death for at least 2 years
* Amount split if multiple eligible claimants - Funeral costs (if paid by dependants)
