Law-The Courts:Procedure and Damages for Negligence Cases (AS)

Question 1

Where are the majority of negligence cases heard?

Answer 1

In a county court

Question 2

What does the manny in which each case is dealt with depend on?

Answer 2

The nature and size of the claim

Question 3

Where are the largest claims heard?

Answer 3

In the High court (QBD)

Question 4

Where do appeals usually go?

Answer 4

To the court of appeal (civil division) and for most legal cases in England and Wales, the supreme court is the final point of appeal

Question 5

What is the court structure overall for a negligence case?

Answer 5

Initial hearing in either county or high court, first appeal in the court of appeal (civil division) and final appeal to the supreme court

Question 6

What is a court of first instance?

Answer 6

The court where a case is first tried, wither the county court or the high court which have different jurisdictions so hear different cases

Question 7

Where do the courts hope cases are settled?

Answer 7

Out of court or by ADR with only a minority being tried

Question 8

In reality, how are cases heard?

Answer 8

Depending on the track they are allocated (small claims, fast track and multi track-according to value and complexity

Question 9

What happens if an appeal is from the decision of a district judge?

Answer 9

The first appeal will normally be to a circuit judge, and are usually on procedural matters or smaller claims in the county court, then go to the court of appeal with a further appeal to the supreme court

Question 10

When is the leapfrog procedure used?

Answer 10

Only where the case is of great legal importance, and will bypass the court of appeal and go directly to the supreme court

Question 11

What form do appeals take?

Answer 11

Not one of a complete rehearing, but a consideration of the documentary evidence in the case and the judge’s notes of witness evidence

Question 12

Why do appeal judges rarely change the trial judge’s finding of fact?

Answer 12

Because the trial judge will have seen the way the witnesses behaved whilst on oath in the witness box

Question 13

What three options does the appeal court have?

Answer 13

It can affirm the original judge’s decision (result isn’t changed), can vary the decision (usually by changing the amounts of damages rewarded), or can reverse the judgement in the first hearing by finding in favour of the other party (usually the one making the appeal)

Question 14

What do claims involving small sums and appeals to the supreme court require?

Answer 14

Leave of court (permission to appeal), either from the court where the appeal is coming from, or the one it’s going to

Question 15

What is the burden of proof in civil law cases?

Answer 15

It’s on the claimant to prove their claim on the balance of probabilities (lower standard of proof than in criminal cases)

Question 16

Why is it easier to prove a civil case?

Answer 16

Because you just have to show that it’s ‘more likely than not’ that the defendant has been negligent

Question 17

What is burden of proof?

Answer 17

The obligation on a party to establish the facts in issue in a case to the required degree of certainty in order to prove their case

Question 18

What are the two exceptions to the rule that the claimant must prove their case?

Answer 18

The civil evidence act 1968, and res ipsa loquitur

Question 19

How does the civil evidence act 1968 allow an exception to the rule?

Answer 19

It means that if the defendant has been convicted of a crime based on the same event, the claimants case in negligence will be satisfied, as a court has already been satisfied that the defendant caused the wrongful act beyond reasonable doubt (higher standard)

Question 20

What is an example of this?

Answer 20

A claim for personal injuries from a car crash where the driver has been convicted of dangerous driving, will not require proof of the drivers negligence-the driver would then have to prove they weren’t negligent

Question 21

What does res ipsa loquitur mean?

Answer 21

‘The thing speaks for itself’, the idea is that the accident causing the damage complained of wouldn’t have happened unless someone had been negligent, and the thing that caused the accident was completely under control of the defendant

Question 22

How can you find in res ipsa loquitur is appropriate?

Answer 22

There is a three part test

Question 23

What is the first part of the test for res ipsa loquitur?

Answer 23

The thing that caused the harm was wholly under the control of the defendant

Question 24

What is the second part of the test for res ipsa loquitur?

Answer 24

The accident that caused the damage complained of would not have happened unless someone had been negligent

Question 25

What is the third part of the test for res ipsa loquitur?

Answer 25

There is no other explanation of the injury caused to the claimant

Question 26

What is the main example of res ipsa loquitur?

Answer 26

Scott v London and St Katherine’s Docks 1865, where the claimant walking along the dock was hit on the head by a sack of sugar that have fallen off an overhead crane. Claimant didn’t have to prove the dock company was negligent as it passed the three part test

Question 27

How did the Scott v London and St Katherine’s Docks 1865 case pass the three part test?

Answer 27

The sugar fell from a crane controlled by the dock company (harm was caused by something under control by the company), sacks of sugar don’t fall off cranes unless someone was negligent, and there is no other explanation of the injury

Question 28

What is the modern explanation of res ipsa loquitur?

Answer 28

From Bergin v David Wickes Television Ltd (1994) where res ipsa loquitur was summarised as a convenient label for a group of situations in which an unexplained accident is, as a matter of common sense, the basis for an inference of negligence

Question 29

In what sort of cases has res ipsa loquitur been successfully used in?

Answer 29

A car knocking over someone on the pavement and an aircraft crashing on take off

Question 30

What is a clear case of res ipsa loquitur?

Answer 30

Mahon v Osbourne 1938 where the claimant went to hospital for an abdominal operation and remain in pain after and died when he should have recovered, because a swab had been left inside him, which would only happen if someone had been negligent, and the swab was wholly under control of the hospital-shows the rule is particularly useful when the claimant wasn’t even conscious when it happened

Question 31

What is an example of were the defendant was found to not be liable, even after res ipsa loquitur had been applied?

Answer 31

Pearson v North Western Gas Board 1968, where the gas main exploded outside a house, killing the claimant’s house and destroying the house. Has board could show it wasn’t negligent as it had taken all precautions to deal with gas leaks. It happened due to cold weather causing the pipe to fracture, but having regular inspections and 24 hour emergency call out teams was sufficient standard of care, showing the board wasn’t negligent

Question 32

What is the conclusion for negligence cases?

Answer 32

Most heard in county court. Timing and venue depends on their allocated track. Claimant has to prove their case on a balance of probabilities, which is easier where res ipsa loquitur can be established, which shifts burden of proof to the defendant

Question 33

What is the outline of the procedure of a negligence case up to trial?

Answer 33

Claim form (limitation period), instruct solicitor, initial investigations, letter of claim sent to defendants, defendant admits (proceeds in relation to quantum only) or denies (proceeds in relation to liability and quantum) liability, joint medical expert instructed (own ones can be instructed in high value cases), valuation of case, negotiations, if negotiations don’t produce a settlement then issue court proceedings

Question 34

What happens once it has been established that court proceedings need to be started?

Answer 34

The formal procedure must be set in motion

Question 35

What claims must be started in the county court?

Answer 35

Claims where there are personal injuries and the claimant doesn’t expect to be awarded more than £50,000

Question 36

Where do all other claims start?

Answer 36

Either in the county court or the high court (Most start in the county court)

Question 37

What is the first step of court proceedings?

Answer 37

To complete a claim form, which can be downloaded or collected from over 200 court offices in the county

Question 38

What is a claim form?

Answer 38

Its simple to complete, requiring names and addresses for claimant and defendant, brief details of the claim, and the value of the claim

Question 39

What is the purpose of claim forms?

Answer 39

To establish the fee payable and to help establish the choice of court and track

Question 40

What is side tow of the form?

Answer 40

Particulars of the claim, it gives details of the claim being made and can be sent separately within 14 days, but most simple claims have it included. It can give simple statements of facts on which the claimant bases the claim, which may include time, date and place of the accident, and an outline of why the claimant considers the defendant has been negligent

Question 41

What does the fee payable depend on?

Answer 41

The size of the claim, there is also possibility of having the fee lessened, or pay no fee at all in certain cases for claimants with low income and few assets

Question 42

What is the small claims track?

Answer 42

Normal track for claims of a monetary value of less than £5000. It also is the track for cases which the financial value of any claim for damages for personal injuries is less than £1000. There will be no complex issues involved, and it is usually heard by a district judge

Question 43

What is the fast track?

Answer 43

Normal track for a claim that doesn’t fall within the small claims track and has a claim value of less than £25000. Also the trial must not be expected to last more than one day, and there is limited oral expert evidence. There may be some complex issues and it is usually heard by a district judge

Question 44

What is the multi track?

Answer 44

Any claim that isn’t within the scope of small claims or fast track. It would be more complex and usually involves a larger sum of money (over £25000) and are usually heard by a circuit judge

Question 45

What happens between allocation and trial?

Answer 45

Court sets date for trial, which is usually at least 21 says later, and the actual date depends on what other directions need to be made, including providing copies of documents to the other party/parties to the case, and copies of experts’ statements

Question 46

What is the conclusion for the procedure of negligence cases up to trial?

Answer 46

Procedure from issue up to trial is designed to bring the claim to a conclusion fairly and quickly. Aim of civil justice system is to reduce average time a claim takes to be resolved. Aim is to reduce time from over a year at end of 1990s to 30 weeks on average for fast track. Procedure is quite straightforward and is backed up with help/guidance online, in leaflets and in court offices

Question 47

What is a general overview of court proceedings, eg for a fast track up to trial?

Answer 47

Claim form, particulars of claim (court issue fee and possible medical report), acknowledgment of service, defence, allocation questionnaires (court fee), timetable set for conduct of case, disclosure of all documents relevant to case held by both parties, witness statements, expert reports, listening questionnaires (court fee and pre trial checklist), trial

Question 48

What are damages?

Answer 48

In negligence cases they are compensatory. The purpose is to put the claimant in the position they would have been in had the negligent event not occurred. Meaning losses are repaid and compensation for future losses are paid (law is concerned with compensating the victim, not punishing the defendant)

Question 49

Why must the claimant follow the general principle of mitigation of loss?

Answer 49

As they aren’t expected to profit from the award of damages. This means minimising the loss by taking reasonable action to do so. This is often reflected in guidelines given by employers to staff following losses that might result in an insurance claim

Question 50

What is an example of how a claimant follows the general principle of mitigation of loss?

Answer 50

Replacing a car that has been written off as soon as possible, rather than hiring a car for many weeks as part of the claim against the defendant

Question 51

In practice, why does the claimant not have to be too careful about ensuring mitigation of loss?

Answer 51

Key criteria is that they take reasonable action, eg a case involving unwanted pregnancy resulting from a negligently performed sterilisation wouldn’t be reasonable to expect the claimant to undergo an abortion

Question 52

What happens due to the damages being compensatory?

Answer 52

Claimant can only receive damages once, even if several people contributed to the accident. Also the amount received can be reduced where the court considers the claimant partly responsible for their loss (contributory negligence, and the reduction is in proportion to the claimants’ own proportion of blame)

Question 53

What happens where the event has resulted in personal injuries?

Answer 53

It is usual to get a preliminary idea of the amount (quantum) of damages likely to be awarded, helping negotiation and often avoids need to start proceedings. It is time consuming but can result in earlier settlement or an interim payment to help claimant with immediate expenses

Question 54

What are the two types of damages when calculating the quantum of damages?

Answer 54

Special and general damages, but there are also distinctions between pecuniary losses and non-pecuniary losses

Question 55

What are special damages?

Answer 55

They reflect losses that are particular to the claimant in the even that has occurred, and general damages are those that are presumed to follow from the negligence

Question 56

What are pecuniary losses?

Answer 56

Those involving financial loss such as loss of earnings (net wages so they don’t make a profit) or damage to goods

Question 57

What are non-pecuniary losses?

Answer 57

Compensation for those things that don’t have a financial value, such as pain and suffering after an injury

Question 58

What things are included for special damages?

Answer 58

They must follow from the negligent event and particular to the claimant. They can all be given an exact figure. Include medical expenses such as hospital charges and prescription fees

Question 59

How are loss of earnings calculated?

Answer 59

Easier where they are salaried and have sick pay arrangements and deductions are made for benefits actually received so they don’t make a profit. Harder with irregular overtime or works varying hours each week (has to take into account history of earnings and likelihood of missing overtime and work-usually takes average earnings from previous 26 weeks and is part of general damages)

Question 60

How is damage to goods compensated?

Answer 60

Eg repairing a car or replacing ruined clothes are easy to calculate as special damages, as there is evidence of the cost from receipts. Written off cars attract damages of the market value before the accident. Principle is applied to all such losses that occur as a result of the negligent act

Question 61

What are general damages?

Answer 61

Designed to cover anything that doesn’t have a readily quantifiable figure that can be put on it

Question 62

What are the three major areas to be explored for general damages?

Answer 62

Pain/suffering/loss of amenity, future medical care/personal assistance, and loss of future earnings

Question 63

How are damages for pain, suffering and loss of amenity calculated?

Answer 63

Hard to calculate. Damages awarded include physical and mental suffering, injury itself , and the reduction in quality of life (amenity)

Question 64

What does the judicial studies board lay down?

Answer 64

Guidelines with respect to size of award for different injured. Allows general consistency in approach but provides some range for different levels of severity which helps settle claims outside of court and there are many calculators for it on the internet

Question 65

What are some examples of typical awards of damages for physical injuries?

Answer 65

Infertility in a woman who already has children (£10,000-£20,000), moderate knee injury (£8000-£14,000) and total loss of sight in one eye (£27,000-£30,000)

Question 66

What factors do the court take into account when making overall calculations?

Answer 66

Time spent in hospital/number/type of treatments, whether the injury is temporary or permanent, loss of life expectation, loss of quality of life, cosmetic injury/effect, psychological/emotional damage, whether there is continuing pain/discomfort/risk of later serious disease

Question 67

What is lack of amenity?

Answer 67

The effect of the injury on everyday activities and on the claimant’s enjoyment of life. Therefore it covers things such as not being able to do housework and being unable to perform personal care activities as well an being unable to follow a sport or recreation

Question 68

How can future medical care and personal assistance become difficult in court?

Answer 68

When a member of the victims family becomes the carer and has to lose earnings as a result. Claimant can be awarded damages for the care and domestic assistance, which can then be used for the carer

Question 69

What happened in Giambrone v JMC Holidays 2002?

Answer 69

Where 652 people staying at a hotel in Majorca on a holiday provided by the defendant tour operator suffered food poisoning, giving rise to the claims. Many victims were children, and their parents were successful in claiming damages for the extra care they had to carry out

Question 70

What does loss of future earnings depend on?

Answer 70

Evidence that can be provided and the arguments that can be made to reduce the claim. Many firms offering forensic and investigative services become expert witnesses in such cases

Question 71

In most cases what is a formula used to help make the calculation?

Answer 71

Claimants net annual loss multiplied by the number of earning years left, less deduction for use of capital, which equals the damages for future loss of earnings

Question 72

How does this calculation work?

Answer 72

On the principle that the income from the capital sum of damages invested will produce the loss of earnings, and that the capital will also be used up during the expected working life used in the calculation. This is on the basis that the damages awarded are compensation and that the claimant will not make a profit-though they aren’t always accurate

Question 73

How did damages used to be paid?

Answer 73

In lump sum and the claimant could do what they wanted with it, but periodical payments are more appropriate where ongoing income is needed so structured settlements are paid which give greater certainty and security