Principles of Remedy for PI and Death

Question 1

What are the key principles for remedy of damages?

Answer 1

1. damages should return C to the pre-tort position
2. C has a duty to mitigate their loss
3. one action rule
4. distinction between general and special damages

Question 2

explain ‘damages should return C to the pre-tort position’

Answer 2

C shouldn’t be any better or worse off as a result of the payment. This is easier to assess for physical damage as opposed to personal injury

Question 3

explain ‘C has a duty to mitigate their loss’

Give examples

Answer 3

C has a duty to take all reasonable steps to keep losses to a minimum.
Examples:
 If C loses their job because of D’s wrongdoing and they are still capable of working, they should find alternative employment
 If C needs a vehicle to perform their work but their vehicle was destroyed by D’s negligence, they should purchase / hire another vehicle
 If C unreasonably refuses medical treatment they cannot recover damages for the harm which the treatment would have avoided

Question 4

what is the ‘one action’ rule?

Answer 4

o C will be paid wholly, there is no coming back to court. It is a single lump sum for incurred and future losses

A limited exception to this rule is in the case of provisional damages and periodic payments.

Question 5

what are special damages?

Answer 5

damages which can be calculated precisely at the date of trial / settlement by way of receipts for money spent, wages slips

Question 6

what are general damages?

Answer 6

damages which aren’t capable of specificity and the court must use their discretion to calculate the amount owed for loss incurred and future losses.

Question 7

how are losses divided to calculate damages?

Answer 7

non-pecuniary and pecuniary losses

Question 8

what are non-pecuniary losses?

Answer 8

o a non-financial loss which is not capable of being calculated in mathematical terms. The main NPL is the injury itself.

Question 9

what is a pecuniary loss?

Answer 9

o financial losses, these are capable of being calculated in mathematical terms i.e. lost wages, medical bills, damaged clothing

Question 10

What is the main non-pecuniary loss? What are the elements to this?

Answer 10

The main non-pecuniary loss is the injury itself. This consists of pain and suffering and loss of amenity caused by the injury.

Question 11

when assessed expected damages for pain and suffering caused by the client’s injury, what questions should the solicitor ask?

Answer 11

o Full details of the injury suffered – eg type of fracture?
o Medical treatment received – eg was the claimant in hospital? For how long?
o Pain and suffering – eg how painful was the injury? How long did the effects last?
o Drugs and prescriptions – eg did the claimant need pain-killing drugs? How much relief did they give?
o Continuing effects – eg does the claimant still suffer pain from the injury?

Question 12

when assessed expected damages for loss of amenity caused by the client’s injury, what questions should the solicitor ask?

Answer 12

o Future effects – eg will the claimant continue to suffer pain from the injury? How long is that expected to last? (Medical evidence would be required on this last point, and generally in order to support the client’s account of their pain and suffering.)
o Are there any activities which the claimant can no longer do, eg playing football, or running over rough ground?
o What were the claimant’s previous interests which they can no longer enjoy, eg playing sports?
o Are there any other detrimental effects of the injury? For example, has the claimant been forced to change to a job which they enjoy less?

Question 13

what does pain and suffering include?

Answer 13

This covers:
o Past, present and future pain
o Physical and mental anguish
o Fear of surgery
o Anguish knowing their life expectancy is shortened because of an accident (s1(1)(b) Administration of Justice Act 1982)

Question 14

what type of test if the pain and suffering test? Explain this.

Answer 14

This is a subjective test

This means that C can only claim for injuries they are aware of, if they were unconscious they would not be able to claim for pain and suffering because they wouldn’t be aware of it (Wise v Kaye (1962)). They could still over for loss of amenity.

Question 15

what does loss of amenity include?

Answer 15

this has a wide scope. The aim of damages for loss of amenity are to compensate for loss of enjoyment of life, i.e.:
o Loss of freedom of movement
o Loss of sight / smell
o Loss of marriage prospects
o Inability to pursue hobbies / career

• Therefore, if C was very active prior to the accident they would receive more damages under this head than an inactive C

Question 16

what type of test if the loss of amenity test?

Answer 16

• This is an objective test, so C will recover whether they were unconscious or not (West v Shephard (1964))

Question 17

what type of damages are awarded for non-pecuniary loss?

Answer 17

general damages (because NPL cannot be precisely calculated)

Question 18

when advising clients about the likely amount of damages for non-pecuniary loss, what will lawyers do?

Answer 18

Lawyers look the to texts like:
o Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases; and
o Practitioner texts like Kemp on damages which contains thousands of cases where damages have been awarded
* This helps to give an indication as to what the court might award

Question 18

how will course assess the quantification of non-pecuniary loss?

Answer 18

• The courts must assess the individual facts of the case because injuries will affect people differently

Question 19

when can pecuniary losses be incurred?

Answer 19

pre or post-trial

Question 20

what pecuniary losses can C recover?

Answer 20

• C can recover any reasonable loss incurred as a result of the accident

Question 20

what are some examples of pecuniary losses C might be able to claim for?

Answer 20

• Below are examples of pecuniary losses a claimant may be able to claim for:
  o Medical expenses
  o Loss of earning pre-trial
  o Loss of earning post-trial
  o Lost years
  o Services required by C
  o Loss of earning capacity
  o Property damage

Question 21

what questions should a lawyer ask their client to establish pecuniary losses?

Answer 21

o Was the client absent from work as a result of the accident?
o Did they lose wages/receive any sick pay?
o Are they still off work?
o How long do they expect to be off work? (The solicitor would need medical evidence in support of this.)
o Did they incur any medical expenses? For example, the cost of private treatment, prescription charges.
o Did they incur any other expenses? For example, extra travel costs, costs of nursing care, costs of special equipment.
o For how long will those medical and other expenses continue? (The solicitor would need medical evidence here too.)

Question 22

what type of damages are incurred and future medical expenses?

Answer 22

These are both pecuniary losses, but incurred medical expenses would be special damages (i.e. they can be quantified) and future medical expenses are general damages

Question 23

when assessing future medical expenses, what will the court consider?

Answer 23

o The court will look at the cost of annual treatment and the number of years C is likely to need treatment

Question 24

what medical expenses can C claim? Give some examples.

Answer 24

• C can claim for any reasonable medical expenses which result from the accident i.e.:
  o Wheelchairs
  o Adapting the house
  o Special dietary needs
  o Travel costs to hospital

Question 25

what is the position regarding failure to mitigate loss and medical expenses?

Answer 25

• S2(4) Law Reform (Personal Injuries) Act 1948  C cannot be found to have failed to mitigate their loss by paying for private treatment rather than obtaining treatment under the NHS

Question 26

what type of damages is loss of earnings pre-trial?

Answer 26

• This is capable of mathematical calculation so would be special damages

Question 27

what is included when calculating loss of earnings pre-trial?

Answer 27

• Net earnings must be used i.e. after tax and NI (the principle of damages is to return C the position they would have been in but for the tort so their take home pay needs to be awarded and not any more)
• If C regularly received bonuses or overtime or this could be included in the calculation
• The same applies to other perks i.e. company car, reduced rate mortgage

Question 28

how do the courts calculate damages for loss of earnings post-trial?

Answer 28

the court assess how much C would have earned, had the accident not occured, using the the following calculation:

multiplier x multiplicand = award for future loss of earnings (adjustments)

NB: this applies whether C is never returning to work or if they are only off for a short time.

Question 28

what type of damages are loss of earnings post-trial?

Answer 28

• These are general damages as they are not capable of precise calculation

Question 29

what is multiplicand and how is this calculated?

Answer 29

The multiplicand is the net annual loss. This is calculated by:
o C’s gross annual salary (+ financial impact of any likely promotion) (NB: inflation is not considered)
o Deduct tax, NI and pension contributions
o = net annual loss

Question 30

what is the multiplier and how is this calculated?

Answer 30

this is the period of time C is unable to work for + the discount rate. Practitioners ascertain this using the Ogden tables, this will have the age on the left and various discount rates at the top (currently -0.25%). You then meet in the middle to work out the mulitplier to use

if C is unable to work again, then this will be the normal retirement age

Question 31

what adjustments may be made when calculating the award for future loss of earnings?

Answer 31

The court can adjust the figure in light of other variables i.e. redundancy or medical evidence which suggests they could have returned to a less skilled (and lower paying) job

Question 32

what is the discount rate?

Answer 32

this is a rate set by the Lord Chancellor to mirror the performance of low-risk investments that do not protect against the effects of inflation

currently, it is -0.25%

Question 33

what do courts and lawyers use to work out the correct mulitplier?

Answer 33

the Ogden table

Question 34

what are ‘lost years’

Answer 34

• ‘lost years’ are years that C has lost as a result of their life expectancy being shortened due to the accident

Question 35

what is the position regarding recovery of earning for lost years?

Answer 35

• C can recover loss of future earnings for lost years (Pickett v British Rail Engineering (1980))
• However, the figure needs to be adjusted so that C is not over compensated
• If the person is married with dependent children, damages will be reduced by 25%
• If the person has no dependents, damages will be reduced by 33%

Question 36

how is loss of earnings approached in relation to children?

Answer 36

• If a child is injured in an accident and can never work again, the court can award damages for future loss of earnings but the assessment is more difficult.

This may be done by:
o Looking at what the parents earn and assuming the child will earn a similar wage
o Looking at the national average earnings
o If a child has shown an interest in a particular future employment, the sum could be based on this

Question 37

can services provided to the claimant be recovered? Give examples.

Answer 37

i.e. C is about to be released from hospital but is still seriously injured, they will need services such as help with housework, gardening, laundry, nursing care

C can recover for these costs, provided that they can show there is a need for them following the injury caused by D (Schneider v Eisovitch (1960))

Question 37

how is the assessment of pecuniary loss for services provided to the claimant assessed?

Answer 37

• If a paid professional is used, the costs must be reasonable and in accordance with the usual market rate for such services
• If a relative has given up paid employment to care for C, the starting point is loss of earnings suffered by the carer but the costs cannot exceed the commercial rate for providing such services
• NB: remember the award of damages is made to C, not the third party

Question 38

what is a loss of earning capacity award called? When is this relevant?

Answer 38

Smith v Manchester Corporation award

Question 39

what is an exception to the general position that C cannot be better off than they were pre-tort?

Answer 39

IfC receives the below payments they will be allowed to keep these in full and these will not impact the sum of the damages to be awarded:
o Insurance payments
o Ill-health pensions
o Charitable payments
* This is for policy reasons as otherwise people would be deterred from taking out such policies

Question 40

when will a Smith v Manchester Corporation award be given?

Answer 40

• where C is injured and suffers some continuing disability but is still able to work in their current job but there is a risk that they might lose this job.
• a judge will only do this if there is a real risk C will lose their job

NB: C must be working in their original job

Question 41

what is an exception to the ‘one action’ rule

Answer 41

The court may award provisional damages or periodic payments in limited circumstances (i.e. so not one whole lump sum)

Question 42

how does benefits affect damages? What is the reason for this?

Answer 42

If C receives benefits following the the accident, these will be deducted from damages awarded for:
o Loss of earnings
o Cost of care
o Loss of mobility

NB: no benefits can be awarded from damages for pain and suffering and loss of amenity

This is because it would not be fair for the state to bear this burden, so D must pay a portion directly to the state

Question 43

give an example of when the court might award provisional damages

Answer 43

o There is a 10% chance Mandeep will lose sight in one eye.
o An award for loss of sight is £30,000
o If Mandeep does not lose sight in their eye, they will be overcompensated by £27,000
o If Mandeep is awarded £3,000 and does lose sight in their eye, they will be under-compensated.
o Therefore, the court will assess damages that C will not lose their eyesight and specifically provide that if they do lose their eye in the future they will be entitled to further damages

Question 44

when will damages be payable on death?

Answer 44

C must have had a claim in tort against D before C died i.e.:
o C dies due to D’s negligence; or
o C dies but the cause of death is unrelated to D’s negligence, but C has a claim in negligence against D for something else (i.e. D damaged C’s car and C dies while the claim is still pending)

A new cause of action is not created, the law simply allows the cause of action to continue after death. This applies to all causes of action except defamation and bereavement damages.

Question 45

re: damages on death

who can bring a claim?

Answer 45

o Claim by C’s estate
o Claim by C’s dependants

Question 46

re: damages on death

when C’s estate brings a claim, what can they claim for?

Answer 46

o C’s pain, suffering, loss and loss of amenity
o C’s lost income, property damage, medical expenses up to the date of death
o Reasonable funeral costs (if paid by the estate)

Question 47

re: damages on death

when C’s estate not claim?

Answer 47

o If the claim was settled before death; or
o If C survived long enough to commence proceedings but didn’t

Question 48

re: damages on death

how do other payments on death (i.e. insurances money) affect the award of damages?

Answer 48

they do not. The award of damages is unaltered by payments on death.

Question 49

re: damages on death

on what basis can a claim by C’s dependents be brought?

Answer 49

The Fatal Accidents Act 1976 (“FA 1976”) created a new cause of action

The dependants must be able to prove that C could have bought a claim against D if they were alive (i.e. D must have committed a tort against C. D can plead any of the defences.)

The claim is usually brought by the PRs of the estate

Question 50

re: damages on death

what is a bar to a dependant’s claim?

Answer 50

• If C had already completed the claim before they died, the dependants cannot bring a claim. This is because there is no longer an outstanding cause of action

Question 51

re: damages on death

what are the types of claim dependants can bring?

Answer 51

o Loss of dependency
o Damages for bereavement
o Funeral costs

Question 52

re: damages on death

what must the claimant prove for a loss of dependency claim?

Answer 52

1. They fall within the class of dependents listed in the FA 1976
2. They must have been actually financially dependent on the deceased and show that they have a reasonable expectation of pecuniary benefit from the deceased.

Question 53

re: damages on death

what is the class of dependants under FA 1976?

Answer 53

 Current and former married spouses / civil partners
 Cohabitees who have lived together for at least 2 years
 Parents
 Children
 Siblings

Question 54

re: damages on death - loss of dependency

what can pecuniary benefit include?

Answer 54

o Pecuniary benefit includes money and cost of replacing services i.e.:
 Childcare
 DIY
 Gardening
 Housework

Question 55

re: damages on death

how are damages for a loss of dependency claim calculated?

Answer 55

Multiplicand (deceased’s net annual earnings) x Multiplier (period of loss) = award for future loss of earnings (-adjustments)

Question 56

re: damages on death - loss of dependency

when will the multiplicand be adjusted?

Answer 56

This is adjusted to reflect the deceased would have spent some of their money on themselves. The multiplicand will be adjusted:
o There will be a 25% reduction for a married person;
o A 33% reduction for a married person without children
o Other factors can be considered i.e.:
 Whether C has any perks of the job like a company car or reduced mortgage rate
 Services they provided to the house which will now need to be paid

Question 57

re: damages on death - loss of dependency

when will the multiplier be adjusted?

Answer 57

• The multiplier may also be adjusted i.e.:
  o A child would not be dependent on a parent for life, so this may be reduced to reflect dependency up until the age of 18
  o Or an older person would be based on their life expectancy

Question 58

re: damages on death - claims by dependants

when is a funeral claim permitted?

Answer 58

where the dependents have paid the cost of the funeral (if the estate paid the costs then the claim would be brought by the estate)

Question 59

re: damages on death - loss of dependency

what factors are not considered when calculating dependency?

Answer 59

o Whether the dependant has remarried or prospect so remarriage; and
o If the dependents are likely to inherit any money

Question 60

re: damages on death

explain a damages for bereavement claim

Answer 60

• This is a fixed sum of £15,120 which is to be split between the dependants
• There is a very narrow category of people who could claim:
  o Spouses
  o Civil partners
  o Parent(s) of unmarried minors
  o Cohabiting partner who:
   Was living with the deceased in the same household immediately before the date of death; and
   Had been living with them for 2 years before their death; and
   Was living as spouse or civil partner of the deceased for those 2 years.