Remedies Flashcards
What’s the aim of damages in tort?
Put the claimant in the position they would have been in but for the defendant’s tortious act - backwards looking, restore to position before tort.
What are the two common categories of damages?
General damages
Special damages
What are the categories of ‘rare’ damages?
‘Aggravated damages’ - greater sum, to compensate serious injury beyond what is normal.
Non-compensatory damages include:
- Nominal - awarded where the case is proved but the claimant has not actually suffered any loss. Such damages merely illustrate that the claim has succeeded.
- Contemptuous - court technically gives judgment but case was without merit/should’t have been brought - very small (1p)
- Exemplary damages - punitive - punishes D, additional award on top of compensatory. If perhaps unconstitutional etc.
What do special damages cover?
Specifically provable and quantifiable financial losses: will include any loss of earnings resulting from the injury up to the date of trial – the claimant can work out what earnings he has lost - awarded net of tax.
Any expenses that the claimant has incurred in relation to medical care would also fit in this category.
What do general damages cover?
These will cover non-quantifiable losses and future financial losses.
Example: this would include the compensation for the pain and suffering (an example of a non-quantifiable loss) – the pain and suffering cannot be specifically quantified in money terms, but nonetheless money is provided to compensate for them. The technical term for this is the award for ‘pain, suffering and loss of amenity’.
also encompass the loss of earnings from the date of the trial onwards (an example of a future financial loss), and arguably the cost of adapting his house in the future.
The court’s approach is to compensate for such losses as best it can.
In the case of one-off future expenses a lump sum will be given. For example, the cost of adapting the home.
The situation is more complex when there is a continuing loss such as future loss of earnings or recurring expenses of medical treatment or care. The basic approach is to take the annual expense and multiply it by the number of years the loss will continue to be suffered. This is known as the multiplier/multiplicand approach. The court is also wary to avoid over compensation.
Are deductions from damages ever made?
Yes - the most common deduction is of any state benefits received by the claimant as a result of their injury, such as unemployment benefit if they have been prevented from working. The deduction is made to avoid the claimant receiving two sums of money for the same reason. Deductions will also be made for any contractual sick pay they have received and any redundancy payment, if the redundancy resulted from the injury. Insurance payouts and any sums received by way of gifts or charity will not be deducted.
May be further reduced by any finding of contributory negligence Gaca v Tirelli General plc [2004].
What about damages when claimant dies? What’s the relevant Act?
Law Reform (Miscellaneous Provisions) Act 1934
- Under this Act the ‘estate’ (ie legal representatives of the deceased person) may bring a claim for any losses (both pecuniary and non-pecuniary) suffered by the deceased as a result of an accident up to the date of death.
Fatal Accidents Act 1976
second possible claim that can be brought when someone has died is for any losses suffered by the dependants of the deceased (ie people who depended on the deceased) as a result of the death. Usually this will be a claim by a family when the deceased was earning wages which were shared with the family, and the family has now lost that support. The Act defines dependants as close blood relations and those related by marriage or who have cohabited for over two years (s 1(3)). Their claim is assessed in much the same way as a personal injury claim.
