Principles of Remedies for Personal Injury and Death Claims Flashcards
What is the aim of damages in tort, and how does this principle apply to different types of harm?
The aim of damages in tort is to put the claimant in the same position they would have been in if the tort had not occurred.
Application to Types of Harm:
1. Property Damage:
* Compensation for repairs or replacement costs.
* Includes additional expenses, such as hiring a temporary replacement vehicle.
2. Personal Injury:
* Compensation is awarded for:
* Pain and suffering.
* Medical expenses and ongoing treatment.
* Lost wages or future loss of earnings.
* Note: Money cannot undo the injury, so damages serve as compensation.
Example: A claimant involved in a car accident can claim for vehicle repairs, medical costs, lost wages, and compensation for a broken leg.
What is the duty to mitigate loss, and how does it affect a claimant’s recovery?
The duty to mitigate requires claimants to take reasonable steps to minimize their losses.
Key Points:
* A claimant cannot recover damages for losses they could have reasonably avoided.
* The principle ensures claimants are compensated but do not profit from the wrongdoing.
Examples:
1. A claimant who loses their job due to the defendant’s actions must seek alternative employment.
2. A claimant whose car is destroyed must hire or replace the vehicle if necessary.
3. A claimant who unreasonably refuses medical treatment cannot recover damages for harm the treatment would have avoided.
What is the one action rule, and what are its implications for negligence claims?
The one action rule allows a claimant to bring only one claim based on a single set of facts.
Implications:
1. A single lump sum must cover:
* Past losses (e.g., lost wages, medical expenses).
* Future losses (e.g., ongoing treatment, future earnings).
2. The claimant cannot bring a second claim if their condition worsens after the award.
Challenges:
* Judges must predict future outcomes, such as recovery or worsening of injuries, which can be uncertain.
Limited Exception: Provisional damages or periodic payments may apply in specific cases, allowing further claims if a condition deteriorates.
What is the difference between special damages and general damages, and what types of losses do they include?
Answer:
1. Special Damages:
* Losses that can be precisely calculated at the time of trial.
* Covers pre-trial financial losses, such as:
* Medical expenses (e.g., prescription costs).
* Lost earnings (e.g., wages lost before trial).
2. General Damages: * Losses that cannot be precisely calculated and are left to the court’s discretion. * Covers post-trial losses, such as: * Pain, suffering, and loss of amenity. * Future medical expenses and loss of earnings.
Example: A claimant with a broken leg can claim:
* Special damages for lost wages during recovery.
* General damages for ongoing pain and future inability to work.
How are non-pecuniary losses assessed, and what factors are considered in determining damages for pain, suffering, and loss of amenity?
Non-pecuniary losses cover harms that cannot be calculated in money terms:
1. Pain and Suffering: * Compensation for physical and mental anguish, including: * Past, present, and future pain. * Fear of future surgery or shortened life expectancy. * Subjective Test: The claimant must be aware of the injury (e.g., unconsciousness prevents claims for pain during that period). * Case Example: In Wise v Kaye (1962), a claimant was not compensated for pain experienced while unconscious. 2. Loss of Amenity: * Compensation for the inability to enjoy life, such as: * Loss of hobbies, mobility, or marriage prospects. * Objective Test: A claimant can recover even if unaware of the loss. * Case Example: In West v Shephard (1964), a claimant was compensated for loss of sight despite being unaware of it.
Factors Considered:
* The claimant’s age, hobbies, and lifestyle before the injury.
* The severity and permanence of the loss.
How are pecuniary losses quantified, and what information is required to assess compensation?
Pecuniary losses are those that can be calculated in monetary terms.
Examples of Quantification:
1. Medical Expenses:
* Pre-trial: Add all expenses incurred, such as private treatment, prescription costs, or travel to hospitals.
* Post-trial: Courts estimate future costs based on treatment duration and annual expenses.
2. Loss of Earnings:
* Pre-trial: Calculate net earnings (after tax and deductions). Include bonuses and job perks (e.g., company car).
* Post-trial: Use the multiplicand (net annual loss) and multiplier (years of future loss) to calculate total damages.
Required Information:
* Employment details, including salary, bonuses, and perks.
* Medical evidence for treatment needs and recovery timeline.
How are damages for future loss of earnings calculated, and what factors influence the final award?
Damages for future loss of earnings are calculated using:
Step-by-Step Calculation:
1. Multiplicand: * The claimant’s net annual loss of earnings at the time of trial is calculated. * This figure accounts for the following: * Base Salary: The claimant’s pre-accident earnings (excluding inflation). * Bonuses or Overtime: If these were regularly earned before the injury, they are included. * Job Perks: Any benefits such as a company car, housing allowance, or reduced mortgage rates. Example: A 35-year-old window cleaner earned £25,000 annually, including regular bonuses and overtime. The net figure, after deductions for tax, national insurance, and pension contributions, forms the multiplicand. 2. Multiplier: * The multiplier represents the number of years for which the claimant is expected to lose earnings. * Factors influencing the multiplier: * Age at Trial: Younger claimants typically receive a higher multiplier due to more working years ahead. * Working Life Expectancy: The multiplier accounts for the claimant’s normal retirement age (e.g., 65). * Discount Rate: Adjusts the lump-sum award to reflect investment returns. The current discount rate is -0.25% under the Damages Act 1996, favoring risk-averse investments. * Contingencies of Life: Adjustments for potential events like redundancy, illness, or career changes unrelated to the injury. Example: The window cleaner, aged 35, had 25 years to retirement at age 60. Using the Ogden Tables, the multiplier would account for the claimant’s age, life expectancy, and the -0.25% discount rate. * Multiplier: 25.2 years * Multiplicand: £25,000 per year * Future Loss of Earnings = 25.2 x £25,000 = £630,000
Adjustments to the Award:
1. Discount Rate (-0.25%): * This reflects the fact that claimants receiving a lump sum can invest the money and earn interest. * At -0.25%, the multiplier increases, ensuring the claimant is not under-compensated due to inflation or poor investment returns. 2. Contingencies of Life: * Adjustments ensure fairness by accounting for real-world possibilities, such as: * Likelihood of redundancy in the claimant’s original job. * Potential for illness unrelated to the accident. * Opportunities to perform alternative, less profitable work. * Courts may reduce the multiplier to reflect these factors. 3. Potential for Alternative Employment: * If the claimant can perform a less demanding job despite the injury, the loss of earnings award is reduced to reflect future income. Example: The window cleaner may retrain as a receptionist, earning £15,000 annually. The adjusted loss would be calculated as: * £25,000 (original salary) - £15,000 (new salary) = £10,000 annual loss. * Multiplier: 25.2 years. * Adjusted Future Loss of Earnings = 25.2 x £10,000 = £252,000.
What role do contingencies of life play in assessing future damages, and how do they ensure fairness?
Contingencies of life account for uncertainties in the claimant’s future, ensuring damages are neither over- nor under-compensatory.
Factors Considered:
* Likelihood of future events, such as:
* Redundancy or career changes unrelated to the injury.
* Alternative employment opportunities if partially disabled.
Example:
A window cleaner who loses a leg may find work as a receptionist. The court reduces the future earnings award to reflect the claimant’s ability to earn income in a new role.
Courts use the Ogden Tables to calculate multipliers adjusted for contingencies, age, and life expectancy.
What are the Judicial College Guidelines, and how are they used in assessing damages for personal injuries?
The Judicial College Guidelines provide standardized ranges of awards for different types of personal injuries.
Purpose:
* Ensures consistency in awarding damages for pain, suffering, and loss of amenity.
* Lawyers use the guidelines to estimate awards based on similar cases.
Application:
In practice, lawyers compare the client’s injuries with precedents in the guidelines or case law (e.g., Kemp on Damages) to negotiate settlements or predict court awards.
What are the “lost years” in personal injury claims, and how are damages calculated for this period?
- Definition: The “lost years” refer to the claimant’s inability to earn income during the period by which their life expectancy has been shortened due to the defendant’s negligence.
- Legal Basis: Established in Pickett v British Rail Engineering [1980], claimants can recover damages for earnings they would have provided for dependents or saved for inheritance.
Calculation Process:
1. Earning Capacity (Multiplicand):
* Calculate the claimant’s net annual income (after deductions for tax, national insurance, and pension contributions).
* Deduct a proportion of the earnings the claimant would have spent on personal expenses:
* 25% for a married claimant with dependents.
* 33% for a claimant without dependents.
2. Multiplier:
* The number of lost years (i.e., the difference between the normal working life expectancy and the reduced life expectancy).
Example Calculation:
* Claimant is 35 years old and, before the injury, expected to work until 60.
* Medical evidence shows a reduced life expectancy to 40 years.
* Lost years: 20.
* Net annual income: £40,000.
* Personal expenses deduction: 25% (£10,000).
* Net earnings for dependents: £30,000.
* Damages: 20 years × £30,000 = £600,000.
Rationale: These damages ensure dependents are supported and the claimant can provide for them even after their death.
How are damages for future loss of earnings calculated for children injured in an accident?
Answer:
* Eligibility: Courts allow compensation for future earnings for children who cannot work due to injury, despite uncertainties in predicting their future careers.
* Challenges:
* If the child is very young, their career potential is speculative.
Methods of Assessment:
1. Parental Earnings: Use the income of one or both parents as a guide to the child’s future earning potential.
2. National Average Earnings: Use average income statistics as a baseline, particularly where parental income is unavailable or unreliable.
3. Demonstrated Potential: Consider evidence of talent or ability in a particular field (e.g., academic or athletic performance).
Example:
* A 10-year-old child injured in a car accident demonstrates strong potential in mathematics.
* The court may assess damages using the likely salary of a professional in mathematics, adjusted for uncertainties.
Can a claimant recover damages for services provided by family members or professional carers after an injury?
Yes, claimants can recover the reasonable costs of necessary services resulting from the injury.
Legal Basis:
* Established in Schneider v Eisovitch [1960], the law compensates claimants for care needs caused by the defendant’s negligence.
Types of Services Covered:
1. Professional Care: Costs of hiring a professional carer or nurse.
2. Family Care:
* If a relative provides care, damages are assessed based on either the relative’s lost earnings or the market rate for professional care (whichever is lower, per Housecroft v Burnett [1986]).
Example:
* A claimant requires round-the-clock care after a spinal injury.
* Spouse leaves a job earning £40,000/year to provide care.
* Damages awarded: £40,000/year or the equivalent cost of professional care (whichever is lower).
What is a “Smith v Manchester” award, and how does it apply to a claimant’s loss of earning capacity?
- Definition: A “Smith v Manchester” award compensates claimants for the risk of future unemployment or reduced job opportunities due to a disability caused by the defendant’s negligence.
- Legal Basis: Smith v Manchester Corporation [1974].
Key Conditions:
1. The claimant is working but faces a real risk of losing their job due to their disability.
2. The claimant’s injury limits their ability to compete in the job market or secure similar-paying employment.
Assessment Factors:
* Severity of disability.
* Likelihood of job loss.
* Difficulty securing alternative employment.
Example:
* A 45-year-old construction worker with a severe back injury may continue working but risks losing their job due to physical limitations.
* Damages compensate for this disadvantage, assessed as a percentage of the claimant’s earning capacity.
What additional pecuniary expenses can a claimant recover in personal injury cases?
Answer:
Claimants can recover reasonable expenses directly resulting from the injury, including:
1. Damaged Property: Replacement costs for clothing, jewelry, glasses, or other personal items.
2. Transportation Costs: Travel expenses for medical appointments or therapy.
3. Medical Equipment: Costs for wheelchairs, prosthetics, or home modifications (e.g., ramps).
4. Household Adjustments: Expenses for specialized furniture or appliances required due to the injury.
Key Principle: Expenses must be necessary and directly linked to the defendant’s negligence.
How are external payments and benefits handled in calculating damages for personal injury?
- General Rule: Claimants should not be over-compensated, but some payments are exempt from deductions.
Deductions:
* State Benefits: Deducted under the Social Security (Recovery of Benefits) Act 1997 for specific losses (e.g., lost earnings, care costs).
Exempt Payments (Not Deducted):
1. Insurance Payments: Encourages individuals to insure themselves.
2. Ill-Health Pensions: Recognizes retirement planning efforts.
3. Charitable Donations: Supports altruism.
Example:
* A claimant who receives £10,000 in State benefits may have this deducted from their damages for lost earnings but can retain any insurance payout.
