Remedies for Personal Injury and Death Claims

Question 1

Compensatory damages: general principles

Answer 1

• Aim of damages in tort is to put the claimant in the same position they would have been in if the tort had not been committed.
• A claimant can bring only one claim based on one set of facts.

A distinction is drawn between special damages and general damages:
* Special damages – 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. e.g. loss of earnings and all loses incurred before the trial.
* General damages – those losses which are not capable of being calculated precisely
and are therefore left to the court to determine. e.g. pain, suffering and loss of amenity and all losses incurred after the trial.

Question 2

Damages for personal injury - non-pecuniary losses

Answer 2

• Claimant’s pain and suffering
  Covers past, present and future suffering.
  Subjective test so C must be aware of the injuries, can’t claim for when they are in coma.
• ‘Loss of amenity’ caused by the injury.
  Loss of the enjoyment of life.
  Objective test.

Question 3

Damages for personal injury - pecuniary losses

Answer 3

Those which are capable of mathematical calculation in money terms.
May have been suffered pre- or post- trial.

Question 4

Damages for personal injury - pecuniary losses - medical expenses

Answer 4

The claimant is able to recover any reasonable medical expenses that have been incurred.

If incurred pre- trial, they will be special damages and are calculated by
adding together all of the expenses.
If they are to be incurred post- trial, they will be general damages.

Claimant cannot be found to have failed to mitigate their loss by paying for private treatment rather than obtaining free treatment under the NHS.

A claimant who is treated by the NHS free of charge cannot recover what it
would have cost them to have private treatment.

Question 5

Damages for personal injury - pecuniary losses - loss of earnings pre- trial

Answer 5

Calculating the net earnings ie after deduction of tax and national insurance
contributions for that period.

If the claimant regularly earned overtime or bonuses,
these should be included in the calculation. Also any perks of the job which the claimant
received, eg a company car, reduced rate mortgage, share options, should be included in the calculation.

Question 6

Damages for personal injury - pecuniary losses - loss of earnings post- trial

Answer 6

General damages.

The court will
award one lump sum to compensate for that future loss.

Question 7

Damages for personal injury - pecuniary losses - loss of earnings post- trial - multiplicand

Answer 7

First step of assessing future loss is to ascertain
the claimant’s gross annual loss as at the date of the trial.

If the claimant would have had an increase in earnings and that increase was very likely to happen, the court can take that into account in assessing the amount of the claimant’s
loss. (However, the salary cannot be increased for the effects of inflation.)

Deduct tax, national insurance, and pension contributions from gross salary. The resulting figure, the net annual loss, is known as the ‘multiplicand’.

Question 8

Damages for personal injury - pecuniary losses - loss of earnings post- trial - multiplier

Answer 8

2nd step

Calculate for how long the claimant will lose this money – the period of future loss.

If the claimant is not expected to work again, this period will be based on the
claimant’s pre- accident working life expectancy, ie the length of time he would have to work until normal retirement age.

25 years (the multiplier) x £25,000 (the multiplicand) = £625,000

Current discount rate of minus 0.25%. Added to the multiplier to increase the amount.

Question 9

Damages for personal injury - pecuniary losses - loss of earnings - the lost years

Answer 9

Claimants whose
life expectancy had been shortened by the incident could recover loss of future earnings for
lost years.

Some deduction to take into account if they were alive they would be spending some of it.
Deduction is generally set at 25% for a person married with dependent children, and
at 33% for those with no dependants

Question 10

Damages for personal injury - pecuniary losses - loss of earnings - children

Answer 10

There are many ways in which a child’s future loss of earnings might be assessed. One way would be to consider what the child’s parents earn and assume the child would reach a similar level. Another approach would be to take the national average earnings and base the child’s earnings on those figures. If a child has shown any potential in a particular area of
future employment, that could be considered in assessing future loss of earnings.

Question 11

Damages for personal injury - pecuniary losses - services provided to the claimant

Answer 11

Released from hospital may need services to help like cleaner.

Law does allow the claimant to recover the cost of services of this kind, need to show the need for the services follows from the injury caused.

Where the claimant’s spouse (or any other relative, etc) has given up paid employment to
care for them, the claimant can recover the cost of that care. Starting point was the loss of earnings suffered by the carer. However, the costs could not exceed the commercial rate for providing the services.

Question 12

Damages for personal injury - pecuniary losses - loss of earning capacity

Answer 12

If they lose their job in the near future, they will be disadvantaged on the job market because of their
disability. They may find it very difficult to get employment. Alternatively, they may be able to
get some employment but find that it is less well paid.

Award can be made if judge satisfied that there is a real risk of the claimant losing their job.

Question 13

Damages for personal injury - pecuniary losses - other pecuniary expenses

Answer 13

Claimants can recover for any other pecuniary expenses they have incurred due to the
incident.

Question 14

Damages for personal injury - pecuniary losses - deductions from damages and exceptions

Answer 14

The following payments are not deducted from the damages which the claimant receives:
* insurance payments;
* ill- health pensions;
* charitable payments

Social Security (Recovery of Benefits) Act 1997 - state benefits can be deducted from only certain kinds of damage suffered by
the claimant:
* compensation for lost earnings;
* compensation for cost of care;
* compensation for loss of mobility.
No benefits are deductible from the claim for pain and suffering and loss of amenity.

Question 15

Damages for personal injury - pecuniary losses - provisional damages and periodic payments

Answer 15

Damages in personal injury claims are awarded in one lump sum at the date of trial.

Exceptions to this:
1. Section 32A of the Senior Courts Act 1981 allows for an award of provisional damages e.g. chance of serious deterioration.
2. In some circumstances, s 2 Damages Act 1996, allows the court to award damages for
personal injury as periodic payments rather than as a lump sum.

Question 16

Damages on death - The law reform (Miscellaneous Provisions) Act 1934

Answer 16

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 17

Damages on death - The Fatal Accidents Act 1976

Answer 17

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 18

Damages on death - The Fatal Accidents Act 1976 - loss of dependency

Answer 18

Must satisfy 2 elements:
1) He must fall within the class of dependents listed in the act (current and former spouses, cohabites for at least 2 years, parents, children, siblings)
2) He must have been actually financially dependent on the deceased

Question 19

Damages on death - The Fatal Accidents Act 1976 - loss of dependency - calculation of dependency

Answer 19

Multiplicand - based on deceased net annual earnings.
Deduction is 25% for a married person with children and 33% for a married person without children.

Multiplier - period of loss to the dependant.

Multiplicand - money spent on himself (bills etc) x multiplier

Question 20

Damages on death - The Fatal Accidents Act 1976 - damages for bereavement

Answer 20

People who can claim are:
* the wife, husband or civil partner of the deceased;
* the parents of a minor who was never married;
* the cohabiting partner of the deceased, who:
(a) was living with the deceased in the same household immediately before the date of
the death; and
(b) had been living with the deceased in the same household for at least two years before that date; and
(c) was living during the whole of that period as the wife or husband or civil partner of
the deceased.

Fixed sum of £15,120.

Question 21

Damages on death - The Fatal Accidents Act 1976 - funeral expenses

Answer 21

Claim for funeral expenses, where they have
been paid by the dependants. (Funeral expenses paid out of the deceased’s estate will be
claimed under the 1934 Act.)