Remedies Flashcards
What is a remedy?
If a C is successful in their action against the D in tort, they will expect a remedy, monetary compensatory damage, injunction etc.
Non compensatory damages
Nominal - minimal award to recognise that a legal wrong has occurred but where no actual damage has been suffered.
Aggravated - the manner in which D committed the tort may add ‘insult to injury’ for which some additional compensation over and above that which reflects the damage suffered is thought appropriate.
Exemplary - these are punitive (punishing) designed to deter the D from deliberate and totally unacceptable conduct and are granted in very limited circumstances
Compensatory damages
A sum of money awarded which should put the claimant back to the position they were before the action:
General: pain, suffering and loss of future earnings, treatment
Special: damage to car, or the cost of private medical insurance
Non-pecuniary losses
Loss of amenity - that is, the inability to enjoy life. Assessed objectively
Pain and suffering - considered using the JC guidelines - also consider the length of suffering, if death was immediate the award will be nominal.
Pecuniary losses (monetary losses)
Loss of earnings - earnings lost due to the inability to work. Awards should consider, tax liabilities and benefits paid to the Claimant by the state DWP.
future losses are determined using
Multiplicand - net annual loss
Multiplier - amount of years (life expectancy)
Pickett v British Rail Engineering (1980)
Lost years - if an injury reduces life expectancy a C is able to claim for those lost years (gone on working) - money will be reduced from any award to take consideration on money that would have been spent on himself, such as living expenses.
Donnelly v Joyce (1973)
A claimant is entitled to damages to pay for the services of a carer to work in the C’s own home. This can be provided by a relative in which it will be free.
Hunt v Severs (1994)
The C is awarded the monies and that is given to the carer, rather than the carer being paid directly
Social Security (Recovery of Benefits) Act 1997
Benefits which the C has received must be deducted from their damages award.
The C must not be paid twice for the same loss.
Provision damages
Means of paying damages in the instance whereby they consider that the C condition is deteriorating. This chance must be real, serious and substantial
S32A Senior Courts Act 1981
Structured settlements
A method of paying damages - has been used to a limited extent to deal with long-term disablement and catastrophic accidents where C is likely to require constant attention.
Periodical payments
Method of payment of damages - where there are substantial future losses using s2(1) Damages Act 1996.
it addresses a claimant’s annual needs and negates the need to pay the claimant a huge sum of money i.e. a windfall which in the case of death will mean that relatives will benefit.
Flora v Wacom (Heathrow) Ltd (2006)
Death
If a claimant dies his action remains in the hands of his estate
It must be proved that the C would have succeeded had he survived.
L R (M P) Act 1934 - damages suffered can be claimed up until the date of death, but there will be no award for:
Future earnings
Bereavement
Exemplary damages
Damage to loss of reputation
Fatal Accidents Act 1976
C’s dependants can claim, they are defined in s1(3) FAA 1976 - those that have familial relationship to the deceased C.
The fixed sum for bereavement is £12,980
They can also claim should the C been the ‘breadwinner’ in their family and those pure economic losses are considered using the multiplicand and multiplier system in future losses.
Injunctions
It is a court order requiring the D to do some act (mandatory) or to stop doing some act (prohibitory)
The injunction is an equitable remedy and is discretionary
