Remedies Flashcards
what is the aim of damages?
to put the claimant back into the position they would have been in if the tort hadn’t been committed
what’s the Latin phrase associated with damages?
Restitutio in integrum
what are heads of damage?
the elements in a compensation claim
-pain and suffering
-loss of earnings or loss of functional capacity
-care and assistance
-medical expenses
-aids and equipment
-interest
what are general damages?
damages that can’t be calculated exactly so the judge decides how much to award
what are general damages awarded for?
-pain and suffering (past present and future pain, including mental anguish caused by a shortened life expectancy)
-loss of amenity (things the claimant used to enjoy doing)
-future loss (eg future costs of nursing care)
-specific injuries (kemp and kemp quantum of damages)
what are special damages?
losses that can be assessed with some accuracy eg loss of earnings
what category of damages do post-trial and pre-trial loss of earnings come under?
pre-trial = special damages
post-trial = general damages
what is the formula for calculating future loss of earnings?
multiplicand x multiplier
-multiplicand = the courts assessment of the claimants net annual loss
-multiplier = the period of future loss
how are damages assessed in property damage?
referencing the market value of the property at the time of its destruction
if its damaged not destroyed, damages are assessed by reference to the cost of repair unless the repair cost is higher than the market value
how does pure economic loss relate to damages?
the nature of the claim means the cost can be calculated exactly,
if the economic loss is a result of personal or property damage it will be included in the overall claim
what are the 2 forms of payments?
interim (lump sum)
periodical (regular payments)
what are interim payments?
-civil procedure rules part 25
-most commonly used in personal injury claims
-immediate money is required before the final calculation to pay for things like housing, expensive care etc.
what are periodical payments?
-s2 Damages act 1996
-‘may order that the damages are wholly or partly to take the form of periodical payment’
what are the 3 other types of damages?
-nominal damages (when no damage has been suffered, eg £1)
-contemptuous damages (when the court feels the action should have never been brought)
-aggravated damages (if the court feels the claimants injuries have been aggravated by the defendant and may increase damages)
what is the rule on mitigation of loss?
the claimant must do everything reasonable to mitigate their loss. further damage resulting from a failure to do so will not be liable for the defendant
