Remedies Flashcards
What are nominal damages in tort claims?
They apply where a tort is actionable without proof of actual damages or loss, primarily aiming to establish legal rights
When would compensatory damages not be appropriate?
When the claimant has not suffered any actual damage, only infringement of rights
What is the aim of compensatory damages?
To restore the claimant to the position they were in before the wrongdoing
What is the ‘mitigation of loss’ principle in compensatory damages?
The claimant must take reasonable steps to minimise their claimed losses
What does the ‘one action rule’ entail?
The claimant can only bring one claim based on one set of facts, typically resulting in a single lump sum award
What are ‘special damages’ in personal injury claims?
Financial losses that can be calculated precisely at the time of trial, like loss of earnings before trial
What are ‘general damages’ in personal injury claims?
Losses that cannot be precisely calculated, covering pain, suffering, and future loss
How are pecuniary losses defined in personal injury claims?
Losses that can be calculated in money terms, such as loss of earnings and medical expenses
What are non-pecuniary losses?
Losses that cannot be measured in monetary terms, like personal injury and emotional distress
What is ‘pain and suffering’ in non-pecuniary damages?
Compensation for physical and mental anguish, including fear of surgery and shortened life expectancy
What is ‘loss of amenity’ in personal injury claims?
Compensation for loss of enjoyment of life, such as inability to participate in activities previously enjoyed
How are medical expenses classified in personal injury claims?
Pre-trial expenses are special damages; post-trial expenses are general damages
Can a claimant recover costs for private medical treatment?
Yes, if they are reasonable, even if treatment is available via the NHS
What factors are considered in calculating loss of earnings pre-trial?
Net earnings with deductions for tax, national insurance, and sometimes perks of the job
What is the ‘multiplicand’ in future loss of earnings calculation?
The annual loss at trial, factoring in promotions but not inflation
What is the ‘multiplier’ in calculating future loss of earnings?
It calculates how long the claimant will lose earnings, usually based on life expectancy or retirement age
What happens in cases of ‘lost years’ for loss of earnings?
Earnings for the claimant’s expected posthumous period are reduced by what would’ve been spent on themselves, awarding only the balance
What are the deduction rates for loss of years?
33% for those with no dependent children and 25% for those married with dependent children
How is loss of earnings for children calculated if they are injured?
Courts may use parental earnings or national averages, considering potential future employment
Can costs for care by family members be recovered?
Yes, according to Schneider v Eisovitch, but costs cannot exceed the commercial rate
Are insurance payments deductible from damages?
No, they are not deducted
Who can make a dependency claim under the Fatal Accidents Act 1976?
Spouses, civil partners, cohabitants of two years, parents, children, and siblings
Who is eligible for bereavement damages under the Fatal Accidents Act?
The spouse, civil partner, or the mother of an illegitimate child. Not applicable to married children’s parents
What is the fixed amount for bereavement damages?
£15,120
