REMEDIES

Question 1

Explain what nominal damages are.

Answer 1

• minimal damages are award due to no significant compensatory loss
• the C’s concern may not be to receive compensation and may just be to establish legal rights

Question 2

What do remedies in tort aim to do?

Answer 2

• try to bring C back into position they would’ve been had the negligence not occurred

Question 3

What is the duty to mitigate loss?

Answer 3

• ## C must try to reduce their losses as much as possible

Question 4

What is the one action rule?

Answer 4

• court must only award a single lump of money to cover both general and special damages

Question 5

What is the difference between general and special damages?

Answer 5

general are damages that cant be calculated precisely and are left to the court to determine:
- future losses of earning
- and future costs of care
- loss of amenity (pain and suffering)

special are precisely calculable figure of the loss:
- past loss of earnings (until date of trial)
- past cost of care
- property damage
- medical expenses or other expenses due to injury

Question 6

Explain what non pecuniary losses are and how they differ to pecuniary losses.

Answer 6

• pecuniary losses can be calculated using a mathematical calculation
• non pecuniary losses are not capable of this

Question 7

What is loss of amenity? Authority?

Answer 7

• term for explaining how the effects of the injury on C’s enjoyment of life
• C who was very active prior to injury would be compensated more
• objective test ( West v Shephard)
• will be able to recover whether conscious or not

Question 8

What qualifies as pain and suffering?

Answer 8

• pain and suffering that C has incurred as a result of injury
• can include knowing that your life expectancy has been shortened by accident (Administration of Justice Act 1982 s1)
• the case of Wise v Kaye establishes a subjective test for awarding a sum for this head of damage. This means that the claimant must be aware of the injuries to be able to claim for pain and suffering. If a claimant was unconscious they would not recover damages for pain and suffering for that period because they would not be aware of it and would fail the subjective test.

Question 9

How is the amount that a claimant can be rewarded for non pecuniary losses be quantified?

Answer 9

• the Judicial College publishes a set of guideline figures for awarding damages for personal injuries
• they record the levels of damages that are being awarded by courts
• Kemp and Kemp on Damages incudes many cases on where damages have been awarded

Question 10

What questions need to be asked to see if pecuniary losses arise?

Answer 10

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

Question 11

Detail the s 2(4) of the Law Reform (Personal Injuries) Act 1948.

Answer 11

• that C cannot be found to have failed to mitigate their loss by pursing private treatment as opposed to the free NHS

Question 12

How are loss of earnings pre trial calculated?

Answer 12

• straightforward calculation
• find net earnings after deducting NI contributions and tax
• include any regularly earned bonuses and perks of job e.g company car

Question 13

How are loss of earnings post trial calculated?

Answer 13

Multiply the multiplicand with the multiplier

Multiplicand:
- find gross annual loss
- was there a promotion that was likely to happen?
- court will take this into account
- from this, court will deduct tax, NI and pension contributions
- this is the multiplicand

Multiplier:
- this is how long C will lose this money
- if C is expected to return to work, then this will be smaller number
- C should not end up in better position than they were before
- the multiplier is reduced to account for interest they will earn as a result of putting large sum into bank
- they do this by using Ogden tables where you take C’s age and rate of interest into account

Question 14

What are the ‘lost years’?

Answer 14

• this is when the injury reduces the life expectancy of C
• the question is whether C can claim remedies for those years that they are now going to be dead for
• they can because they are like to have dependants

Question 15

Pickett v British Rail Engineering

Answer 15

• it established that claimants whose life expectancy had been shortened by the incident could recover loss of future earnings for lost years
• risk with this method is that they will be over- compensated because if C were working normally, they would spend part of their earnings on themselves (for food, clothing, etc).
• only balance of their earnings would be left over to support their family.
• so, when we calculate the loss of earnings figure for the period after the claimant is expected to die, we need to deduct the amount which the claimant would have spent on themselves
• that deduction is generally set at 25% for a person married with dependent children, and at 33% for those with no dependants.

Note: only relevant to make this deduction where your client’s life expectancy has been reduced so that they are expected to die during the period for which you are calculating damages.

Question 16

How are loss of earnings for children calculated?

Answer 16

• one way would be to consider what the child’s parents earn and assume the child would reach a similar level.
• another approach would be to take the national average earnings and base the child’s earnings on those figures.
• if a child has shown any potential in a particular area of future employment, that could be considered in assessing future loss of earnings.

Question 17

Can a claimant recover the cost of services that they require as a result of the defendant’s negligence? Authority?

Answer 17

Yes
- Schneider v Eisovitch
- can recover cost of care from nursing care
- if C’s spouse or mother quit job to care for C (Housecroft v Burnett)

Question 18

Smith v Manchester Corporation

Answer 18

• where a claimant is injured, and suffers some continuing disability, but is still able to work, C could lose their job in the near future or be disadvantaged on the job market because of their disability.
• they may find it very difficult to get employment.
• alternatively, they may be able to get some employment but find that it is less well paid.
• an award of damages can be made to compensate the claimant for this disadvantage.

Note that this award is relevant where the claimant is currently still working in their original job. It will not be relevant if the claimant can no longer work at all, or if the claimant has already been forced to move to lower- paid work. In these cases, the claimant will simply make a claim for their loss of future earnings in the normal way, as considered above.

Question 19

What are the exceptions to deductions from damages?

Answer 19

• C may still receive:
  1) insurance payments
  2) ill health pensions
  3) charitable payments (usually from employer)
• if these sums were deducted, it would discourage people from protecting themselves by insurance, or from making charitable payments, because the benefit would simply go to the defendant.

Question 20

What does the Social Security (Recovery of Benefits) Act 1997 say about a claimant recovering State benefits?

Answer 20

• it deducts relevant benefits from the claimant’s damages, and then require D to pay that amount back to the State.
• under the Act, State benefits can be deducted from only certain kinds of damage suffered by the claimant. The three heads of damage affected by the Act are:
  • compensation for lost earnings;
  • compensation for cost of care;
  • compensation for loss of mobility.

Question 21

What is the exception to the one lump sum rule?

Question 22

What does The Law Reform (Miscellaneous Provisions Act) 1934 say?

Answer 22

• this allowed for a claim in tort to survive even after C or D’s death.
• Note that this is subject to the exception that the following do not survive:
  (a) claims in defamation, and
  (b) claims for bereavement damages.
• Under s 1(2)(a) there can be no claim for loss of income for any period after the claimant’s death

Question 23

What can the deceased claimant’s claim cover?

Answer 23

• pain and suffering and loss of amenity (comes to end on date of death)
• damage to property
• medical and other expenses (end on date of death)
• loss of income up to date of death (usually this is included in lost years but the the Law Reform Act limits loss of income to the period up to death
• damages go to the estate, the damages will be distributed under terms of will

Question 24

What does the Fatal Accidents Act 1976 aim to do?

Answer 24

• it allows dependants to sue for the death of the person on whom they were dependant
• there are three possible claims:
  1) a claim on behalf of dependants for loss of dependancy
  2) a claim for damages for bereavement (limited)
  3) a claim for funeral expenses (if paid by dependants)

Question 25

In order to bring a claim under Fatal Accidents Act, what must the claimants be able to show?

Answer 25

• that has the deceased survived, the deceased themselves would’ve been able to bring claim against D

Question 26

Who can claim as a dependant for loss of dependancy?

Answer 26

a person must satisfy two requirements:
- they must fall within the class of dependants as listed in the Act; and

1) The wife, husband or civil partner of the Deceased;
2) Anyone living with the Deceased immediately before their death;
3) Anyone living with the Deceased for 2 years before their death;
4) Any biological child of the Deceased;
5) Any other child treated by the Deceased as their own child;
6) Any parent or grandparent of the Deceased;
7) Any sibling of the Deceased (brother, sister, uncle, aunt, etc)

• they must have been actually financially dependent on the deceased.

Question 27

How do they calculate dependancy for the claim of loss of dependancy?

Answer 27

Multiplicand multiplied by the multiplier:

Multiplicand:
- the multiplicand is based on the deceased’s net annual earnings
- court will also account for earnings spent on themselves
- so, not all of the deceased’s salary would have been available to support their dependants
- the conventional deduction would be 25% for a married person with children and 33% for a married person without children. Where all of the deceased’s children were no longer dependent upon them at the time of death, then the conventional deduction would also be 33%.
- the deceased might have contributed to the family’s wealth by means other than net annual salary
- e.g perks of the job (company car, reduced rate mortgage, reduced shopping bills)
- cheaper holidays, services which were provided to the household which will now have to be paid for eg. gardening, decorating, cooking, cleaning

Multiplier:
- this should be based on the period of loss to the dependant, ie on the period for which the dependency might have continued.
- the longest possible period a dependency could continue would be until the deceased would have ceased to work.
- in the case of a spouse of a deceased wage earner, it is likely that their period of dependency would continue for this full period – until the deceased ceased to work.
- however, if a particular claimant would not be dependent on the deceased for so long, a shorter multiplier should be applied to their claim.
- So, in the case of a child, you would expect the period of dependency to cease when the child reached the age of 18 or ceased full-time education.

Question 28

Under the Fatal Accidents Act 1976, s 1A, who can claim for damages for bereavement?

Answer 28

The only people who can claim damages for bereavement are:
- the wife, husband or civil partner of the deceased;
- the parents of a minor who was never married or a civil partner
- if parents aren’t married only mother can recover bereavement damages

• a child cannot recover bereavement damages for their parent
• the amount of bereavement damages is currently £15,120. This is a fixed sum.
• only one award of £15,120 will be made in respect of the
  death.
• so where both parents are entitled to claim, the award is split between them.

Question 29

Can funeral expenses be recovered by dependants under Fatal Accidents Act 1976?

Answer 29

• if dependants paid for it then yes (s3 (5))
• funeral expenses paid out of the deceased’s estate (claim under the 1934 Act)
• funeral expenses paid by the dependants (claim under the 1976 Act)

Question 30

Will the money a dependent is due to inherit from the deceased’s estate be considered when awarding damages for loss of dependency?

Answer 30

• under the Fatal Accidents Act 1976, any money due to be inherited is disregarded
• they can still claim

Question 31

A claimant was seriously injured in an accident. While crossing a road, she was hit by a car driven by the defendant. It is not until five months after the accident that the claimant recovers enough to fully understand the nature of her situation and that the defendant was responsible. A consultant overseeing the claimant advises that she will be unable to return to work.

Which of the following statements best describes the option open to the claimant?

A) The claimant may sue the defendant for negligence and seek damages for her pain, suffering and loss of amenity.

B) The claimant may sue the defendant for negligence and seek damages for her pain, suffering and loss of amenity from the date of the trial.

C) The claimant may sue the defendant for negligence and seek damages for her loss of earnings from the date of the accident to the trial.

D) The claimant may sue the defendant for negligence and seek damages for her pain suffering and loss of amenity from the date of the accident and pure economic losses.

E) The claimant may sue the defendant for negligence and seek special damages and general damages

Answer 31

E is correct

Question 32

The claimant is a specialist machine tool operator whose hand was crushed in a setting machine. Their employer has admitted liability. The claimant earned £30,000 net prior to the accident with the expectation that they would have been promoted to a position with a salary of £40,000 net. Medical evidence confirms that the claimant will never be able to return to their previous occupation. However, the medical evidence also confirms that they should be able to return to work in a less skilled occupation earning £15,000 net. The claimant is 30 years old and plans to retire at 65.

Which of the following statements best explains how the claimant’s claim for future loss of earnings should be calculated?

A) Multiplier (35) x Multiplicand (£25,000 (£40,000 minus £15,000)).

B) Multiplier (35) x Multiplicand (£40,000).

C) Multiplier (35.11) x Multiplicand (£25,000 (£40,000 minus £15,000)).

D) Multiplier (35.11) x Multiplicand (£30,000).

E) Multiplier (35.11) x Multiplicand (£40,000).

Answer 32

The answer is C.

The multiplier is slightly higher because of the current discount rate of 25% will increase the multiplier of 35 years to 35.11 using Ogden tables

The discount rate takes into account the money spent on the deceased themselves

Question 33

A pedestrian was walking on the pavement towards her office when she was struck by a lorry which had veered off the road. The lorry driver was driving negligently at the time. The pedestrian was killed instantly. In addition, the briefcase that she was carrying was damaged beyond repair. The pedestrian was a single parent and is survived by her two children, a son aged 15 years and a daughter aged 19 years.

Which of the following statements best explains the damages that will be recoverable from the lorry driver as a result of the pedestrian’s death?

A) The pedestrian’s son can recover bereavement damages.

B) The pedestrian’s son and daughter can both recover bereavement damages.

C) The pedestrian’s estate can recover damages in respect of her damaged briefcase.

D) The pedestrian’s estate can recover damages for the pedestrian’s pain, suffering and loss of amenity and also in respect of her damaged briefcase.

E) The pedestrian’s estate can recover damages for the pedestrian’s future loss of earnings and in respect of her damaged briefcase.

Answer 33

Option C is correct because her estate will be able to recover damages in respect of her briefcase by virtue of the Law Reform (Miscellaneous Provisions) Act 1934.
Options A and B are wrong because irrespective of their age, children are not eligible to claim bereavement damages in respect of the death of a parent (Fatal Accidents Act 1976).
Option D is wrong because as the pedestrian was killed instantly, she did not suffer any pain, suffering and loss of amenity.
Option E is wrong because damages for the deceased’s future loss of earnings are not recoverable by the estate. Damages for loss of dependency may be recoverable under the Fatal Accidents Act 1976.