Negligence: Principles of remedies for personal injury & death claims Flashcards
What is the general principle of damages as a remedy?
To return the claimant to their pre-tort position
(ie. not better off nor worse off than would be if tort hadn’t happen)
What is the claimant’s duty to mitigate?
Claimant’s duty to keep their loss to a minimum (only a ‘reasonable’ amount)
What is the one action rule?
There can be only one action for the claimant’s tort - they will be compensated wholly for past and future losses in one claim (can’t come back to court)
What is the difference between general & special damages?
Special damages can be calculated precisely at date of trial (using receipts etc.)
General damages are not capable of precise calculation - court will use discretion
What is the difference between pecuniary & non-pecuniary losses?
Non-pecuniary losses are non-financial losses (ie. the injury itself)
Pecuniary losses are financial losses
What damages will be available for personal injury?
Non-pecuniary loss (the injury itself)
- Pain & suffering
- Loss of amenity
+
Pecuniary losses
- Medical expenses (incurred & future), lost income pre-trial etc
- Future losses
What are the 2 elements of non-pecuniary loss to be considered when calculating damages for personal injury?
Pain & suffering
+
Loss of amenity (the effect upon the claimant’s lifestyle - more pain, more effect on their life, the greater the compensation)
What comprises pecuniary losses when calculating damages for personal injury?
Medical expenses (already incurred & any future expenses)
Lost income pre-trial
Future losses
Is using private medical care a failure to mitigate?
No
How are future losses calculated when considering pecuniary losses in damages for personal injury?
The multiplier method
Multiplicand:
- The net annual loss to the claimant (ie. how much per year, net, has the claimant loss)
- Can include promotion prospects
- Doesn’t include effect of inflation
Multiplier:
- How long with the claimant suffer this particular loss? (eg. rest of their working life? a couple of years?)
- Adjusted in accordance with interest rates & inflation to ensure claimant is not over or under compensated
- Done by discount rate - currently minus 0.25%
What must the deceased have against the defendant to obtain damages on death?
Claimant (deceased) must have a claim in tort against the defendant
(ie. would have had a claim in compensation against the defendant but died before compensation received)
What are the two claims available for damages on death?
- Claim by the estate (for claimant’s losses until death)
ie. what the deceased would have been able to claim - Claim by the deceased’s dependants
ie. people depending on claimant where defendant’s tort has been the cause of death of the claimant
In a claim by the estate for damages on death, what can they claim for?
The claimant’s losses until death (ie. what deceased themselves would have been able to claim, no future losses)
a. The injury itself (pain & suffering, loss of amenity)
b. Lost income etc (if calculable as special damages)
c. Funeral costs, if paid by the estate
In a claim by the deceased claimant’s dependants for damages on death, what must the defendant’s tort be?
The defendant’s tort must have caused the death of the claimant
What can a deceased claimant’s dependants claim for?
i. Loss of dependency
- Only for: spouses, civil partners, parents, children, siblings
- Who were financially dependent on the deceased
- Calculated using multiplier method
ii. Bereavement
- Only for: spouses, civil partners, parents of unmarried minors
- Fixed sum (currently £15,120)
iii. Funeral costs (if paid by dependents)
