Remedies

Question 1

Damages on death - Key point

Answer 1

2 separate issues:
1) The position where a claimant dies before he has received an award of compensation - Benefit of their estate - The Law reform (miscellaneous provisions) Act
2) The damages that can be recovered where the defendant’s negligence causes the claimants death - loss of dependancy - The fatal accidents act

Question 2

Damages on death - Benefit of the estate - The law reform (Miscellaneous Provisions) Act - Definition

Answer 2

Allows a cause of action to continue after death for defendant and claimant. The estate can claim damages for pain and suffering, loss of earnings, nursing care, property damage and travel expenses up to date of death. There can be no claim for loss of income for any period after the claimant’s death

Question 3

Damages on death - Benefit of the estate - The law reform (Miscellaneous Provisions) Act - Requirements

Answer 3

Necessary to establish liability in the normal way (duty of care, breach of duty, causation of damage). Then deal with quantum of damages - the claim for the estate will cover:
1) Non-pecuniary Losses
2) Pecuniary losses
3) Funeral expenses

Question 4

Damages on death - Loss of dependency - definition

Answer 4

Allows dependents to sue for the death of the person on whom they were dependant. Claimants must show that had the deceased survived, he would have been able to bring a claim against the defendant himself. 3 possible claims under the act:
1) A claim on behalf of dependants for loss of dependency
2) A claim for damages for bereavement - limited to certain persons only
3) A claim for funeral expenses - if paid by the dependants

Question 5

Damages on death - Loss of dependency - 1) Loss of dependency - definition

Answer 5

Provides compensation for pecuniary losses (economic losses) only. Must satisfy 2 elements:
1) He must fall within the class of dependents listed in the act
2) He must have been actually financially dependent on the deceased

Question 6

Damages on death - Loss of dependency - 1) Loss of dependency - Class of dependents

Answer 6

1) Wife/husband or former wife/husband of deceased
2) Any person who was living with the deceased in the same household immediately before date of death, had been living with the deceased in the same household at least 2 years before that date or was living during the whole of that period as the husband, wife or civil partner
3) Any parent or other ascendant of deceased
4) Any person who was treated by deceased as his parent
5) Any child/ascendant of deceased
6) Any person who was treated as a child by deceased
7) Brother, sister, uncle or aunt of deceased

Question 7

Damages on death - Loss of dependency - 2) Financially dependent on deceased

Answer 7

Dependent can claim for the cost of replacing services which were provided by the deceased/ Court needs to look to the future and assess the future pecuniary benefits which the dependants would have received from the deceased.

Question 8

Damages on death - Loss of dependency - Loss of dependency - Future pecuniary benefits calculation - Multiplicand

Answer 8

Based on deceased’s net annual earnings. The deceased’s own living expenses will be deducted from his earnings. 25% for a married person with children and 33% without children.

Question 9

Damages on death - Loss of dependency - Loss of dependency - Future pecuniary benefits calculation - Multiplier

Answer 9

Based on period of loss to the dependant. 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 wage earner it is likely that his period of dependency would continue for this full period. In the case of a child the period of dependency ceases when child reaches age of 18, or ceased full time education.

Question 10

Damages on death - Loss of dependency - Damages for bereavement

Answer 10

The only people who can claim damages for bereavement are:
1) The wife, husband or civil partner
2) The parents of a minor who was never married
A child cannot claim bereavement damages for the death of a parent. Fixed sum of £15,120

Question 11

The living claimant - What is the aim of damages in tort? - Nominal damages

Answer 11

Where they haven’t suffered any harm. Usually compensated for cost of bringing a claim

Question 12

The living claimant - What is the aim of damages in tort? - Compensatory damages

Answer 12

Aim is to put the claimant in the same position they would have been in if the tort had not been committed. Clock is turned back.

Question 13

The living claimant - mitigation of loss

Answer 13

As the claimant should be no worse off because of the occurance but also no better off. They should not profit from the incident. The claimant cannot claim damages for losses which they could have avoided by taking reasonable steps themselves.

Question 14

The living claimant - Special damages

Answer 14

Those losses which are capable of being calculated precisely at the time of the trial and which are stated in the form of a calculation . Covers financial losses incurred before trial

Question 15

The living claimant - General damages

Answer 15

Those losses which are not capable of being calculated precisely and are left for court to determine. Includes pain and suffering

Question 16

The living claimant - Damages for personal injury

Answer 16

2 types of losses:
1) Pecuniary losses = those which are capable of mathematical calculation
2) Non-pecuniary losses = not capable of being calculated in monetary terms

Question 17

The living claimant - Non-pecuniary losses - Pain and suffering

Answer 17

Claimant must be aware of injuries to be able to claim for pain and suffering. If a claimant was unconscious he would not recover damages for paid and suffering that period.

Question 18

The living claimant - Non-pecuniary losses - Loss of amenity

Answer 18

Aims to compensate claimant for the loss of the enjoyment of life. Covers loss of freedom of movement, loss of sight, loss of smell, loss of marriage prospects, inability to pursue hobbies.

Question 19

The living claimant - Pecuniary losses - Medical expenses

Answer 19

If incurred pre-trial they will be special damages. If incurred post-trial will be general damages - court will base assessment on the annual cost of treatment and number of years treatment is likely to continue. If the treatment is from NHS this will generally be free of charge - no damages. A claimant cannot be found to have failed to mitigate his loss by paying for private treatment rather than obtaining free treatment under NHS - can recover reasonable cost of private treatment

Question 20

The living claimant - Pecuniary losses - Loss of earning pre-trial

Answer 20

Special damages. Need to ascertain net earnings after deduction of tax and national insurance. If the claimant regularly earned over-time or bonuses these should be included. Any perks of the job which the claimant received should also be included

Question 21

The living claimant - Pecuniary losses - Loss of earnings post-trial - Multiplicand

Answer 21

Net annual loss. If the claimant would have had an increase in earnings and this increase was likely to happen the court should take this into account

Question 22

The living claimant - Pecuniary losses - Loss of earnings post-trial - Multiplier

Answer 22

Calculate how long claimant will lose this money. If claimant is not expected to work again this period will be based on the claimant’s pre-accident working life expectancy - the length of time they would have to work until normal retirement age.

Question 23

The living claimant - Pecuniary losses - Loss of earning capacity and loss of mobility

Answer 23

If claimant suffers a continuing disability but is still able to work. However he may be disadvantaged on job market, or he may be able to get employment but find that it is less pay. Court may compensate difference

Question 24

The living claimant - Pecuniary losses - Loss of earnings the lost years

Answer 24

When calculating loss of earnings need to deduct amount which claimant would have spent on himself. Deduction is set at 25% for a person married with dependent children and 33% for those with no dependants

Question 25

The living claimant - Pecuniary losses - Loss of earnings - Children

Answer 25

Child’s future loss of earnings. Have to consider what their parent’s earn and assume the child would reach a similar level. Another approach would be to take the national average earnings ad base child’s earnings on those figures. If child has shown any potential in a particular area of future employment that could be considered

Question 26

The living claimant - Pecuniary losses - Services provided to the claimant

Answer 26

A claimant can recover damages for the services he needs and it does not matter who renders these services. Identity of the carer however can make a difference to how much claimant can recover. Must show costs were reasonable - in accordance with usual market rates. Where the claimant’s spouse has given up paid employment to care the claimant can recover cost of that care.

Question 27

The living claimant - provisional damages and periodic payments

Answer 27

Court is allowed to award damages for personal injury as periodic payments rather than as a lump sum