LGS02 Remedies

Question 1

What must the claim form say about Remedies?

Answer 1

CPR, r. 16.2(1)(b), (c)

The claim form must … (b) specify the remedy which the claimant seeks;

(c) where the claimant is making a claim for money, contain a statement of value in accordance with r. 16.3;

(cc) where the claimant’s only claim is for a specified sum, contain a statement of the interest accrued on that sum …

r. 16.2(5) The court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.

Question 2

What are nominal damages?

Answer 2

Liability is established, but no compensatable loss has been suffered.

• Available where damage is not an essential element, eg contract, libel
• Not available in negligence because damage is an essential element
• Usually winner pays the costs if all they get is nominal damages

Question 3

What are compensatory damages?

Answer 3

Broadly falls into:

• Pecuniary awards (special damages), where a measurable money sum can be calculated
• Non-pecuniary awards (general damages), where the court assesses an amount based mostly on conventional awards in similar cases

Question 4

What are Aggravated damages?

Answer 4

• Technically a sub-category of Compensatory Damages
• Additional compensation “for the Defendant’s objectionable behaviour”
• Compensate for injury to feelings caused by the manner in which the wrong was committed
• Consequently they cannot be awarded to a company, because it has no feelings
• Potentially can be awarded in any class of action, not just tort (Williams v Settle [1960] 1 WLR 1072, an infringement of copyright case)
• Said to be unavailable in clinical negligence (Kralj v McGrath [1986] 1 All ER 54)
• Must be pleaded separately in the PoC (CPR, r. 16.4(1)(c))

Question 5

What are Exemplary damages?

Answer 5

Remedies Manual p 47

• Technically not compensatory
• “Awarded to show the court’s disapproval of the Defendant’s behaviour”
• Rookes v Barnard [1964] AC 1129
  
  • exemplary damages can only be awarded:
    
    • (a) where there is oppressive, arbitrary or unconstitutional behaviour by government servants;
    • (b) where the Defendant’s conduct has been calculated to make a profit exceeding the amount that would be awarded by compensatory damages;
• Editor of major newspaper “publish and be damned” libel…or*
  * (c) where exemplary damages are expressly authorised by statute

Question 6

What are Liquidated damages?

Answer 6

The sum quantified by a clause in a contract as the sum payable in the event of breach.

Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co [1915] AC 79

• A genuine pre-estimate of the loss occasioned by breach is lawful
• Anything else is illegal as a penalty, and not recoverable

Question 7

What are foreign currency damages?

Answer 7

Only if that currency represents the true currency of C’s loss: The Despina R [1979] AC 685

PD 16, para 9.1:

Where a claim is for a sum of money expressed in a foreign currency it must expressly state:

(1) that the claim is for payment in a specified foreign currency,
(2) why it is for payment in that currency,
(3) the Sterling equivalent of the sum at the date of the claim, and
(4) the source of the exchange rate relied on to calculate the Sterling equivalent.

Question 8

What is the compensatory principle in damages for breach of contract?

Answer 8

Damages for breach of contract are intended to put the Claimant into the position they would have been in if the Defendant had not breached the contract. Remedies Manual p 26

Sometimes called expectation loss

This is the main rule.

Question 9

What is the important prinicple in Johnson v Agnew?

Answer 9

Johnson v Agnew [1980] AC 367 is a landmarkEnglish contract law case on the date for assessing damages. Lord Wilberforce decided that the date appropriate is the date of breach, or when a contracting party could reasonably be aware of a breach.

Five major principles it laid down were,

1. termination for breach of contract is “prospective”, not “retrospective”; i.e. repudiatory breach of contract discharges both parties from future performance of their contractual obligations, but leaves their accrued rights intact (and themselves open to damages)
2. a claimant for specific performance does not forfeit his right to terminate the contract by accepting a defendant’s repudiatory breach
3. when a specific performance decree is made, a court oversees performance, and it has the sole jurisdiction to determine whether that obligation can be discharged
4. common law damages are assessed at the date of the breach of the contract, though the court may fix another date if justice requires
5. the same principles for awarding common law damages applies to awarding equitable damages under s 50 Supreme Court Act 1981

Question 10

What was the application of Johnson v Agnew in Golden Strait Corpn v Nippon Yusen Kubisha Kaisha [2007] 2 AC 353?

Answer 10

10. 7.1998 Charterparty entered into. Included a war clause
11. 7.2001 Nippon repudiated the contract
12. 3.2003 Gulf War started
13. 12.2005 End of charterparty term

Held: On the facts, the Agnew v Johnson principle had to yield to the importance of achieving an accurate assessment of the loss actually incurred. The contract breached included a war clause, and war had broken out which would have entitled Nippon to terminate the contract on 21.3.2003. As Nippon would probably have cancelled the contract at that point, damages were limited to the period between 14.7.2001 and 21.3.2003.

Question 11

What is reliance loss?

Answer 11

This compensates the Claimant with a view to putting the Claimant back into the position as if the contract had never been made.

• Compensates C for wasted expenditure
• Sometimes used where expectation loss damages are difficult to quantify
• Cannot be used to enable C to avoid losses incurred through a bad bargain

Question 12

What is the test for causation in contract?

Answer 12

Was the breach of contract an effective cause of the loss?

Question 13

When is contributory negligence available?

Answer 13

Not available if the only cause of action is contract.

Is available if liability gives rise to concurrent liability in contract and tort.

Question 14

What are some good examples of reliance loss?

Answer 14

Common examples of reliance expenses are for collection of goods (where the buyer is required by the contract to collect the goods and after incurring charges the seller repudiates the contract), storage and transport charges.

According to Anglia Television Ltd v Reed, pre-contractual expenses are recoverable as part of the reliance loss, provided ‘it was such as would reasonably be in the contemplation of the parties as likely to be wasted if the contract was broken’ (per Lord Denning MR at p 64).

Question 15

What is the effect of contributory negligence on a claim for damages for breach of contract?

Answer 15

There are three classes of case:

(a) Those where liability arises both in contract and tort coextensively, in which case the Law Reform (Contributory Negligence) Act 1945 applies and damages will be reduced to take account of any contributory negligence on the part of the claimant (see Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852).
(b) Those where the breach does not amount to a tort as well, in which case the 1945 Act does not apply and any contributory negligence on the part of the claimant can be disregarded (see Lambert v Lewis [1982] AC 225).
(c) Those where there is both strict liability in contract and coextensive liability in contract and tort. In such a case there can be no defence of contributory negligence (Barclays Bank plc v Fairclough Building Ltd [1995] 1 All ER 289).

Question 16

What is the test in Hadley v Baxendale for Remoteness in Breach of Contract?

Answer 16

Damage is not too remote if either:

(a) the loss flows naturally from the breach of contract; or
(b) the loss can reasonably be supposed to have been in the contemplation of the parties when they entered into the contract as the probable result of breach

Question 17

Give a brief summary of Heron II

Answer 17

Czarnikow Ltd v Koufos (The Heron II) [1969] 1 AC 350

A contract for the carriage of a cargo of sugar was delayed by 9 days. The market price of sugar dropped following this delay due to the arrival of another cargo of sugar. The claimant sought to recover the difference from the defendant for their breach of contract. The defendant argued the damages were too remote since it was just as likely that the market price could increase.

Held:

Under the second limb in Hadley v Baxendale it was only necessary that the losses were in the reasonable contemplation of the parties as a possible result of the breach. There was no requirement as to the degree of probability of that loss arising. Since the defendant must have known that market prices fluctuate, the loss would have been in his contemplation as a possible result of the breach.

Question 18

Give a brief summary of The Achilleas

Answer 18

Charterer delivered the ship 9 days late at the end of a charterparty. As a result the owner had to reduce the daily rate for the follow-on charter to the next charterer by $8,000 a day (for 191 days). The issue was whether damages would be assessed at $8,000 per day for the length of a new charter, or just the loss to the owner for the additional 9 days on the old charter.

Principle: It is not sufficient that a particular loss is “not unlikely” if, as a matter of law, it is not reasonable to assume the defendant had undertaken responsibility for the loss. This is not merely a question of probability, but also of what the contracting parties had to be taken to have had in mind, having regard to the nature and object of their business transaction.

Held: Damages were restricted to the loss (based on the difference between the market rate and the charter rate) on the over-run period of 9 days.

Question 19

What claim is made when goods are delivered but not paid for?

Answer 19

Where goods are delivered but not paid for, the claim is for the price (Sale of Goods Act 1979 (SoGA 1979), s. 49), and not a claim for “damages”.

E+W+S+N.I.

49(1) Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

Question 20

What is the claim when there is a breach of implied terms as to quality of goods?

Answer 20

Breach of SoGA implied terms as to quality (SoGA 1979, s. 53)

This is a claim by the buyer of goods, who by SoGA 1979, s. 53 is entitled to:

• Loss directly and naturally resulting in the ordinary course of events from breach
• Prima facie this is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if no breach (s. 53(3))

Question 21

What is the remedy for breach of warrant?

Answer 21

• “53(1) Where there is a breach of warranty by the seller, or where the buyer elects (or is compelled) to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may—*
• (a) set up against the seller the breach of warranty in diminution or extinction of the price, or*
• (b) maintain an action against the seller for damages for the breach of warranty.*
• (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.*
• (3) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had fulfilled the warranty.*
• (4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.”*

Question 22

What remedies are available in consumer contracts?

Answer 22

In consumer contracts the consumer (Consumer Rights Act 2015, s. 19) may exercise:

(a) the short-term right to reject (ss 20 and 22);
(b) the right to repair or replacement (s. 23);
(c) the right to price reduction (s. 24);
(d) the final right to reject (s. 20); and
(e) any other remedy, including claiming damages and the s. 53 set-off (s. 19(11)).

Question 23

When can damages in contract be obtained for distress and disappointment?

Answer 23

1. The general rule is that damages for distress are not available in an action for breach of contract.
2. However, there has been some slackening in the strictness of this rule, so that in contracts entered into for purposes of enjoyment (see Jarvis v Swans Tours Ltd [1973] QB 233) damages will be available for disappointment,
3. and in contracts entered into to avoid distress or to gain peace of mind, damages will be available for the failure to prevent that distress (see Heywood v Wellers [1976] QB 446).
4. The scope of this exception was extended by the House of Lords in Farley v Skinner [2001] 4 All ER 801.
   
   1. It is not necessary that the very purpose of the contract should have been to provide pleasure, relaxation or peace of mind; it is sufficient that this was a major or important part of the contract.
   2. However, damages under this head should be restrained and modest. The House of Lords regarded £10,000 as right on the upper limit.
5. Where the damages are for injury to feelings, the appropriate range is £500 to £25,000 (Chief Constable of West Yorkshire v Vento [2003] IRLR 102).
6. Applying this principle, it was held in Hamilton Jones v David & Snape [2004] 1 All ER 657 that a claimant could recover damages for the distress caused by the loss of the company of her children, where this loss was caused by the negligence of her solicitors, who had been specifically instructed in order to avoid such a loss.
7. Damages for distress can also be claimed as consequential to physical inconvenience because this is taken to be obviously within the contemplation of the parties at the time of contracting (see Perry v Sydney Phillips and Son [1982] 1 WLR 1297).
8. Damages for distress arising out of wrongful dismissal from a contract of employment cannot be recovered (Addis v Gramophone Co Ltd [1909] AC 488, reaffirmed by the House of Lords in Johnson v Unisys Ltd [2001] 2 All ER 801).
9. No claim for inconvenience or distress can be made by a company (see Firsteel Cold Rolled Products v Anaco Precision Pressings The Times, 21 November 1994).
10. There is a comprehensive examination of the quantification of damages for distress and disappointment in spoilt holiday cases in Milner v Carnival plc [2010] 3 All ER 701.

Question 24

Can you claim Property Damage as a result of Breach of Contract ?

Answer 24

• Usually diminution of value
• Sometimes: cost of reinstatement

Recovery of damages based on the cost of reinstatement depends on whether it will be, or was, reasonable to insist on remedial work being done.

• A factor is whether C has already done the work, or the degree to which C shows a sufficient intention of having the work done
• Where the cost of reinstatement is out of all proportion to the advantage gained by the work it will be unreasonable for C to insist on the work
• See Ruxley Electronics v Forsyth [1996] AC 344 (the swimming pool that should have been 7 feet 6 inches deep but was only built to 6 feet 9 inches).

Question 25

Can damages be awarded for loss of amenity?

Answer 25

Pool built to the wrong depth. The trial judge gave the diminution of value was zero and the cost of cure was £21,560. He awarded £750 for inconvenience and £2500 for loss of amenity. The Court of Appeal said the cost of rebuilding the pool should be awarded. The appeal succeeded. The damages award was disproportionate, and should have been limited to the loss of amenity only. The cost of reinstatement or reconstruction may be an inappropriate standard if it was disproportionate to the loss. ‘There are not two alternative measures of damages, as opposite poles, but only one; namely, the loss truly suffered by the promisee.’ Where the defect is minor it may be appropriate for an award for dissappointed expectation rather than any difference in value. The fact that such damages could not be calculated mathematically did not mean they could not be calculated.

Question 26

What is the rule on mitigation of loss?

Answer 26

• C is required to take reasonable steps to minimise its losses
• If C in fact avoids a loss by taking steps after D’s breach, C cannot recover for the avoided loss
• If C seeks to take reasonable steps to mitigate, C is entitled to recover the loss or expense in taking those steps

Question 27

What is the overall aim of damages in tort?

Answer 27

Overall aim – compensation for the loss suffered as a result of the defendant’s tort – to place the claimant, as far as possible, in the position he or she would have been in had the injury not occurred.

Question 28

What is the basic rule in Causation (Tort?)

Answer 28

• The claimant must show causation—that the tortious act caused his or her injury, loss or damage.
• It need not have been the sole cause.
• It is usual to apply the ‘but for’ test: the claimant must show that but for the defendant’s tortious act he or she would not, on the balance of probabilities, have suffered the injury or loss.
• It may be sufficient in some circumstances to show that the tortious act increased the likelihood of damage occurring (McGhee v National Coal Board [1973] 1 WLR 1), but it must still have caused the injury on the balance of probabilities (Kay v Ayrshire and Arran Health Board [1987] 2 All ER 417).
• There is no claim in respect of a tortious act which has increased the likelihood of dam- age if it still would have occurred in any event on the balance of probabilities (Hotson v Fitzgerald [1987] AC 750; Gregg v Scott [2005] 4 All ER 812).

Question 29

Can the chain of causation be broken?

Answer 29

• Causation may be broken by a supervening act or event, in which case the claimant’s claim will fail.
• The supervening act may come between the defendant’s tortious act and damage, in which case the chain of causation may be broken altogether, but whether it is broken is a question of fact and degree.
• If the supervening act was reasonably foreseeable and/or made little difference to the chain of events, the chain is probably not broken.
  
  • In Corr v IBC Vehicles Ltd ( injured as a result of the defendant’s negligence, developed a psychiatric illness which made him suicidal, and he did eventu- ally commit suicide.)
• If, on the other hand, the supervening event was not reasonably foreseeable and was a wholly new event, the chain of causation may be broken even if the ‘but for’ test is still satisfied.

Question 30

What is the definition of contributory negligence?

Answer 30

The Law Reform (Contributory Negligence) Act 1945, s. 1(1) provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage …”

In deciding the level of contributory negligence the court must consider: (a) The causative potency of the acts or omissions of both parties; and

(b) The relative blameworthiness of both parties. Degree of blameworthiness is the more important factor.

Question 31

How is fault defined for the purposes of contributory negligence?

Answer 31

s 4

negligence, breach of statutory duty, or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

Question 32

Is economic loss recoverable in tort?

Answer 32

 Basic point is that damages are not awarded for pure economic loss.
 But financial loss flowing from physical damage is recoverable.

Question 33

What is the scope of the claimant’s duty to mitigate?

Answer 33

This does not mean that the claimant is required to minimise his or her loss at all costs, rather that he or she must take all reasonable steps to do so.

Question 34

What test do the courts apply when dealing with mitigation?

Answer 34

When dealing with mitigation the courts apply the test of what is reasonable subjectively, i.e. the question is whether it was reasonable for this claimant in all the circum- stances to have behaved as he or she did, not whether a reasonable person would have behaved in that way.

The courts are particularly lenient in cases of personal injury.

There is a willingness, for example, to hold that it is reasonable for the parents of an injured child to give up their jobs in order to stay at home to care for their child, even though their financial loss would have been far less had they employed a nurse and a nanny.

Question 35

Who has the burden of proof when dealing with mitigation?

Answer 35

The burden of proof is on the defendant to show that the claimant has failed to take rea- sonable steps to mitigate, not on the claimant to show that he or she has done so. Any suggestion that the claimant should have to show his or her actions or decisions were reasonable is probably bad law (see Geest plc v Lansiquot [2003] 1 All ER 383).

Question 36

What damages are awarded for Personal Injury?

Answer 36

 Damages for Pain, Suffering and Loss of Amenity (“PSLA”)

 Damages for Past Losses of Earnings etc

 Damages for Future Losses of Earnings etc

 Interest

Question 37

What was the effect of Simmons v Castle [2013] 1 WLR 1239?

Answer 37

…from 1 April 2013, the proper level of general damages in all civil claims for:
(i) pain and suffering,
(ii) loss of amenity,
(iii) physical inconvenience and discomfort, (iv) social discredit,
(v) mental distress, or
(vi) loss of society of relatives,
will be 10% higher than previously, unless the claimant falls within LASPO 2012, s. 44(6). It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000.’

Question 38

What must a particular of claim include?

Answer 38

(1) Particulars of claim must include –

(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
(c) if the claimant is seeking aggravated damages or exemplary damages, a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.

Question 39

What matters must be set out specifically in the particulars of claim if you want to rely on them?

Answer 39

PRACTICE DIRECTION 16 – STATEMENTS OF CASE

8. 2 The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:
   (1) any allegation of fraud,
   (2) the fact of any illegality,
   (3) details of any misrepresentation,
   (4) details of all breaches of trust,
   (5) notice or knowledge of a fact,
   (6) details of unsoundness of mind or undue influence,
   (7) details of wilful default, and
   (8) any facts relating to mitigation of loss or damage.

Question 40

What are provisional damages?

Answer 40

A typical case is a PI claim based on a head injury, where C has suffered (say) a skull fracture, and the medical evidence says that while C at present has not developed epilepsy, the trauma means there is an increased chance of this in the future. Another example is the risk of the onset of an industrial disease.
A traditional damages award, based on the current medical evidence, is unsatisfactory because:
(a) If C never develops the condition, including damages for the risk means the award is too high; and
(b) If C does develop the condition, merely having the risk reflected in the damages means C is seriously under-compensated.
A provisional damages award solves this by:
(i) Awarding current damages based on C’s actual medical condition at the time; and
(ii) Permitting C to return to court at a later time if the deterioration (or disease) occurs.

Question 41

When seeking provisional damages what must be put in the particulars of claim?

Answer 41

In a provisional damages claim the claimant must state in his particulars of claim:

(1) that he is seeking an award of provisional damages under either section 32A of the Senior Courts Act 1981 or section 51 of the County Courts Act 1984,
(2) that there is a chance that at some future time the claimant will develop some serious disease or suffer some serious deterioration in his physical or mental condition, and
(3) specify the disease or type of deterioration in respect of which an application may be made at a future date.

Question 42

What must the particulars of claim include in Personal Injury claims?

Answer 42

PD 16, paras 4.1-4.3A:
4.1 The particulars of claim must contain:
(1) the claimant’s date of birth, and
(2) brief details of the claimant’s personal injuries.
4.2 The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims.
4.3 Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries…
4.3A (1) In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report. Where the claimant files more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal (website at: www.medco.org.uk) and any further report from an expert in any of the following disciplines must also be a fixed cost medical report:
(a) Consultant Orthopaedic Surgeon;
(b) Consultant in Accident and Emergency Medicine;
(c) General Practitioner registered with the General Medical Council;
(d) Physiotherapist registered with the Health and Care Professions Council.
(1A) The cost of obtaining a further report from an expert not listed in paragraph (1)(a) to (d) is not subject to rule 45.29(2A)(b), but the use of that expert and the cost must be justified.

Question 43

What must be included in a statement of claim where the claim is for Personal injury and the claimant has attached a medical report?

Answer 43

PD 16, para 12.1; 12.2:
12.1 Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(1) state in his defence whether he –
(a) agrees,
(b) disputes, or
(c) neither agrees nor disputes but has no knowledge of,
the matters contained in the medical report,
(2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and
(3) where he has obtained his own medical report on which he intends to rely, attach it to his defence.
12.2 Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating:
(1) which of those items he –
(a) agrees,
(b) disputes, or
(c) neither agrees nor disputes but has no knowledge of, and
(2) where any items are disputed, supplying alternative figures where appropriate.

Question 44

What is the Right of action for wrongful act causing death?

Answer 44

Fatal Accident Act 1976

(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
(2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person (“the deceased”) whose death has been so caused.

Question 45

Who is a dependant for the purpose of an action for wrongful act causing death?

Answer 45

(3) In this Act “dependant” means—
(a) the wife or husband or former wife or husband of the deceased;

(aa) the civil partner or former civil partner of the deceased; (b) any person who—
(i) was living with the deceased in the same household immediately before the date of the death; and
(ii) had been living with the deceased in the same household for at least two years before that date; and
(iii) was living during the whole of that period as the husband or wife or civil partner of the deceased;

(c) any parent or other ascendant of the deceased;
(d) any person who was treated by the deceased as his parent;

(e) any child or other descendant of the deceased;
(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
(fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;
(g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

Question 46

Who can claim for bereavement under the FAtal Accidents Act 1976 and how much?

Answer 46

(1) An action under this Act may consist of or include a claim for damages for bereavement. (2) A claim for damages for bereavement shall only be for the benefit—

(a) of the wife or husband or civil partner of the deceased; and
(b) where the deceased was a minor who was never married or a civil partner— (i) of his parents, if he was legitimate; and
(ii) of his mother, if he was illegitimate.

(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.

Question 47

How are damages assessed for the purpose of the Fatal Accident Act 1976 ?

Answer 47

s 3

(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.
(2) After deducting the costs not recovered from the defendant any amount recovered otherwise than as damages for bereavement shall be divided among the dependants in such shares as may be directed.
(3) In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re-marriage of the widow or her prospects of re-marriage.
(4) In an action under this Act where there fall to be assessed damages payable to a person who is a dependant by virtue of section 1(3)(b) above in respect of the death of the person with whom the dependant was living as husband or wife or civil partner there shall be taken into account (together with any other matter that appears to the court to be relevant to the
action) the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together.
(5) If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.
(6) Money paid into court in satisfaction of a cause of action under this Act may be in one sum without specifying any person’s share.

Question 48

What is the effect of death on causes of action [Law Reform (Miscellaneous Provisions) Act 1934]?

Answer 48

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation.

(1A) The right of a person to claim under section 1A of the Fatal Accidents Act 1976 (bereavement) shall not survive for the benefit of his estate on his death.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—

(a) shall not include—
(i) any exemplary damages;
(ii) any damages for loss of income in respect of any period after that person’s death; …

(c) Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

…

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.
(5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Acts 1846 to 1908, and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1) of this section.

Question 49

What must be stated in the particulars of claim in a fatal accident claim?

Answer 49

PD 16, paras 5.1-5.3:

5. 1 In a fatal accident claim the claimant must state in his particulars of claim:
   (1) that it is brought under the Fatal Accidents Act 1976,
   (2) the dependants on whose behalf the claim is made,
   (3) the date of birth of each dependant, and
   (4) details of the nature of the dependency claim.
6. 2 A fatal accident claim may include a claim for damages for bereavement.
7. 3 In a fatal accident claim the claimant may also bring a claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased.

Question 50

What kinds of injunctions are there?

Answer 50

Note injunctions are divided into:

 Prohibitory injunctions

 Mandatory injunctions

And also into:

 Interim injunctions

 Final injunctions

Question 51

When may a court grant an injunction?

Answer 51

 the court may grant an injunction where it is just and convenient

Both interim and final injunctions are governed by the SCA 1981, s. 37 (which also applies to the county courts: County Courts Act 1984, s. 38):

Question 52

What are the American Cyanamid principles?

Answer 52

In American Cyanamid Co v Ethicom Ltd [1975] AC 396, the court developed a set of guidelines to establish whether an applicant’s case merited the granting of an interlocutory injunction.

The main American Cyanamid guidelines, as they have come to be known, are:

• Whether there is a serious question to be tried.
• What would be the balance of convenience of each party should the order be granted (in other words, where does that balance lie?)
• Whether there are any special factors.

And, what Lord Diplock referred to as the “governing principle:”

• Whether an award of damages would be an adequate remedy, the basis for which he explained as follows:

“… the governing principle is that the court should first consider whether, if the plaintiff were to succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable would be [an] adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.” (Emphasis added).

Question 53

When will final injunctions not be granted?

Answer 53

 damages would be an adequate remedy

 the claimant does not have clean hands

 there has been delay / laches

Question 54

What discretionary factors affect whether an injunction will be granted?

Answer 54

 the importance of curbing D’s activities

 whether breaches of C’s rights will continue unless restrained

 whether the court will be prepared to impose sanctions for breach

Question 55

In what circumstances may damages be awarded in lieu of an injunction?

Answer 55

Under the Senior Courts Act 1981, s. 50 (what used to be Lord Cairns’ Act 1858)

50 Where the Court of Appeal or the High Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance.

There is usually no real reason for C to resort to the SCA 1981, s. 50, because C can claim damages as well as an injunction in most situations (see Dominion Coal Co Ltd v Dominion Iron & Steel Co [1909] AC 293 and the SCA 1981, s. 49).

Question 56

What factors come into play when a judge is awarding damages in lieu of an injunction?

Answer 56

Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822
Nuisance caused to local residents by noise from a speedway track.
The discretion to award damages in lieu is unfettered, and depends on weighing all competing factors. Relevant factors include the terms of any planning permission for the defendant’s activities; effect of an injunction on the viability of D’s business; public enjoyment of D’s activities; effect on residents in addition to C of the noise from D’s activities.

Question 57

How are damages under Lord Cairns’ Act assessed?

Answer 57

Damages under s. 50 are in general assessed on the same basis as damages at common law.

Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798
D built on its land in breach of a restrictive covenant. Damages in lieu of an injunction were assessed at the price C could reasonably have expected from a negotiated release from the covenant.

Question 58

What must a claim for an injunction in respect of land contain?

Answer 58

PD 16, para 7.1:

Where a claim is made for an injunction or declaration in respect of or relating to any land or the possession, occupation, use or enjoyment of any land the particulars of claim must:

(1) state whether or not the injunction or declaration relates to residential premises, and
(2) identify the land (by reference to a plan where necessary).

Question 59

What is specific performance?

Answer 59

An order requiring the performance of the obligations of a party to a contract.

Question 60

What are the requirements to obtain an injunction for specific performance?

Answer 60

Requirements

 Claimant must demonstrate they are ready, willing and able to perform their own

obligations under the contract

 Not a type of obligation which will not be specifically enforced, such as:

o illegal contracts;
o voluntary obligations;
o contracts for personal skill or work; and
o obligations that require constant supervision

 Equitable, so available only where legal remedies (such as damages) are inadequate

 Not available if there has been a misrepresentation, or a serious mistake or

misdescription

 May be refused if there will be severe hardship

 May be refused if there is no mutuality

Question 61

What is the approach to Specific performance in the sales of goods?

Answer 61

Sale of Goods Act 1979, s. 52:

52(1) In any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the plaintiff’s application, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages.

(2) The plaintiff’s application may be made at any time before judgment or decree.
(3) The judgment or decree may be unconditional, or on such terms and conditions as to damages, payment of the price and otherwise as seem just to the court.

Question 62

What is the difference between specific goods and ascertained goods?

Answer 62

“specific goods” means goods identified and agreed on at the time of the contract of sale (SoGA 1979, s. 61(2)).

“ascertained goods” are goods which have been selected and appropriated to the contract. It is the opposite of “unascertained goods”, which are goods defined by description only.

Question 63

What is rectification?

Answer 63

This is an order altering a written document to reflect the true intentions of the parties

 It is not the bargain that is being rectified

 Rather, it is the written record of the bargain that may be rectified

Question 64

What are the requirements of an injunction for rectification?

Answer 64

Requirements

(a) Document must be shown not to reflect the agreement between the parties

o In other words, there has been a common mistake in drawing up the agreement
o Or a unilateral mistake by party 1, which is known by party 2, and party 2 does not

draw the mistake to the attention of party 1 (b) That affects the legal rights between the parties (c) Discretionary

Bars to Rectification

 Parties cannot be restored to their former positions (but not applied strictly)

 Payment of money under a judgment (after which it is too late to rectify)