Principles of Remedies for Personal Injury and Death Claims Flashcards
chapter 8
What is the primary aim of damages in tort?
To put the claimant back in the same position they would have been in if the tort had not been committed. This means the claimant should be neither worse off nor better off due to the incident.
What is ‘mitigation of loss’?
A claimant’s duty to take reasonable steps to minimise their losses. Claimants cannot claim for losses they could have avoided by taking reasonable steps. For example, they should seek alternative employment or medical care
Explain the “one action rule.”
A claimant can bring only one claim based on one set of facts. A single lump sum is awarded to cover past and future losses. Claimants cannot return to court if their injury worsens later.
What is the difference between special and general damages?
○ Special damages are losses that can be precisely calculated at the time of the trial, such as pre-trial loss of earnings.
○ General damages are losses that cannot be precisely calculated, such as pain, suffering, and loss of amenity, as well as all losses incurred after the trial
What are the two main categories of damages for personal injury?
○ Pecuniary losses: those capable of mathematical calculation (e.g., loss of earnings, medical expenses).
○ Non-pecuniary losses: those not capable of being calculated in money terms (e.g., pain and suffering, loss of amenity).
What does ‘loss of amenity’ refer to?
The loss of enjoyment of life due to an injury. This includes things like loss of freedom of movement, inability to pursue hobbies, and other detrimental effects of the injury. The test is objective, and a claimant can recover under this head whether conscious or not.
How are non-pecuniary damages quantified?
Courts consider the individual facts of each case, referencing the Judicial College Guidelines and case law. Lawyers will use previous cases that are similar to estimate damages for pain and suffering and loss of amenity.
How is pre-trial loss of earnings calculated?
By calculating net earnings for the period before the trial. This includes overtime, bonuses, and perks of the job. It is considered special damages because it is capable of precise calculation.
How are post-trial loss of earnings calculated?
Calculated by using a ‘multiplier’ (how long the claimant will lose money) and ‘multiplicand’ (the claimant’s net annual loss). This calculation is adjusted by the discount rate and ‘contingencies of life’
What are ‘lost years’ in the context of loss of earnings?
The years of earning capacity lost when an injury reduces a claimant’s life expectancy. Damages are awarded to compensate for loss of earnings during these ‘lost years’, with a deduction for the claimant’s living expenses.
Can a claimant recover the cost of services provided to them?
Yes, a claimant can recover costs for services needed due to their injury, regardless of whether the services are provided by a professional, relative, or friend. If a relative gave up work to care for the claimant, the claimant can recover their lost earnings, up to a commercial rate.
What is a ‘Smith v Manchester Corporation’ award?
An award to compensate a claimant who is still working but has a reduced earning capacity due to their injury, and faces a real risk of job loss in the future.
What types of payments are NOT deducted from damages?
Insurance payments, ill-health pensions, and charitable payments are not deducted from damages.
What is the effect of the Social Security (Recovery of Benefits) Act 1997?
Certain state benefits are deducted from damages awarded for lost earnings, cost of care, and loss of mobility. The defendant is then required to pay that amount back to the State.
What is a ‘provisional damages’ award?
An award where there is a chance of serious deterioration in the claimant’s condition. Damages are initially assessed as if the deterioration won’t happen, but the claimant can claim further damages if it does.
