remedies in tort

Question 1

what are damages?

Answer 1

a form of compensation for a claimant for losses they have suffered

Question 2

what needs to be proved for a tort which is actionable per se

Answer 2

no actual damage or loss to establish a claim- C suffered no injury or damage BUT their rights have been infringed e.g. right to bodily integrity

Question 3

how are damages given for a tort that is actionable per se?

Answer 3

nominal damages- token amount of money

Question 4

what are nominal damages usually?

Answer 4

awarded costs of bringing the claim to recognise that the claim was properly brought in order to vindicate the Cs rights i.e. C will not be out of pocket due to bringing the claim

Question 5

for compensatory damages, how are they measured?

Answer 5

general idea is to put the C in the same position thye were in before the tort was moitted

Question 6

what is the duty to mitigate?

Answer 6

the C cannot claim compensation for something they could have avoided by taking reasonable steps themselves (C should not profit)

Question 7

what is the one action rule?

Answer 7

C can only bring one claim based on one set of facts- court awards one single lump sum to cover both losses already suffered up to time of trial and losses expected to suffer in the future- C cannot then go back and claim again if they dont recover fully etc

Question 8

what are general damages?

Answer 8

not capable of being calculated precisely so left to court to determine- they can be stated but no definitive figure can be placed e.g. pain, suffering, loss of amenity and all losses incurred after trial

Question 9

what are special damages?

Answer 9

losses capable of being calculated precisely at the time of trial and are state din the form of a calculation- covers financial losses incurred before trial such as loss of earnings

Question 10

what are the two types of damages for personal injury?

Answer 10

pecuniary losses and non-pecuniary losses

Question 11

what are pecuniary losses

Answer 11

capable of math calculation in money terms (suffered pre or post trial) e.g. loss of earnings, medical expenses

Question 12

what are non-pecuniary losses

Answer 12

not capable of being calculated in money terms- Cs personal injury

Question 13

what is loss amenity

Answer 13

loss in your quality of life and lifestyle changes that you have had to endure as a result of your injuries

Question 14

what are examples of losses of amenities and personal injury

Answer 14

extent of injury, medical treatment needed, pain/suffering, continuing effects (does the C still suffer pain), future effects, are there things C can no longer do?

Question 15

how are damages for pain and suffering considered?

Answer 15

court assesses Cs pain and suffering to reach a monetary figure for compensation- Wise v Kaye subjective test that C must be aware of unjuries ti be able to claim for pain and suffering e.g. not when they were unconcious

Question 16

how are damages for loss of amenity considered?

Answer 16

someone who was more active will receive more than one who was inactive, West v Shepherd objective test- C will be able to recover for this whether conscious or not

Question 17

how can you quantify non-pecuniary damages?

Answer 17

curts have to consider facts on each individual case and turn to guidance in law reports etc, find a case that is most like the one under consideration to obtain a rough guide

Question 18

how are medical expenses considered?

Answer 18

C can cover any medical expenses incurred (pre trial is special damages and post trial are general damages so will base on cost of treatment and number of years the treatment is likely to continue

Question 19

can C claim for any other type of medical expense other than treatment?

Answer 19

yes if it resulted from the accident e.g. wheelchairs, adapting house dietary needs etc

Question 20

can C recover costs of private medical care rather than NHS?

Answer 20

yes but not if they actually go with NHS and try to claim what it would’ve been if it was private

Question 21

how are loss of earnings pre-trial considered

Answer 21

calculating net earnings the period of when tort committed to current time incl normal deductions and bonuses/overtime and any perks of the job and so can be calculated and is special damages

Question 22

how are losses of earnings post trial considered?

Answer 22

general damages- date of trial and future loss to the C leads to teh court awarding a lumo sum to compensate for that future loss

Question 23

loss of future earnings- what is mutiplicand?

Answer 23

Cs gross annual loss at date of trial (include a very likely increase e.g. promotion) then deduct tax, NI, pension contributions- the result figure is the multiplicand

Question 24

loss of future earnings- what is multiplier?

Answer 24

the period of future loss i.e. how long the C cannot work for

Question 25

how are the multiplicand and multiplier used to calculate damages?

Answer 25

multiplied together e.g. 25 years times 25000 pounds= 630000

Question 26

how does the discount rate of 0.25% affect the lump sum?

Answer 26

demonstrates how their lump sum will increase because the multiplier increases

Question 27

what does the discount rate mean for the C?

Answer 27

they won’t be over or under compensated

Question 28

what happens when a C has been told they now have a lower life expectancy?

Answer 28

i.e. if someone loses 20 years work capacity they cannot provide for people who depend on them, so these lost years can be compensated- Pickett v British Rail Engineering- will deduct what the C would have spent on themselves usually 25% for someone with children and 33% for no children

Question 29

can a C recover the cost of all of these services as part of their damage award?

Answer 29

yes- Schneider v Eisovitch but has to show that the needs for services follows from the injury caused by the Ds negligence

Question 30

can a C claim for a spouse who has taken time off work to care for them?

Answer 30

yes- Housecroft v Burnett- the starting point was loss of earnings suffered by carer but couldn’t exceed the commercial rate for providing the services

Question 31

how is loss of earning capacity measured?

Answer 31

i.e. has disibility but can still work so may be less pay etc- can compensate for this disadvantage but judge must be satisfied that there is a real risk of the C losing their job- judge must put a money value on that- Smith v Manchester Corporation award

Question 32

what are the various deductions from damages and exceptions?

Answer 32

need to consider possibel financial support e.g. insurance and how that should be taken into account when damages are calculated- thi scan lead to their damages being deducted so that the C wont profit

Question 33

which payments are not deducted from damages?

Answer 33

insurance, ill-health pensoins, charitabel payments

Question 34

what is deducted for state benefits?

Answer 34

can be deducted from only certain kinds of damage suffered by the C- 3 heads of damage affected by this are compensation for lost earnings, cost of care, loss of mobility

Question 35

who are beneficiaries

Answer 35

people either named in will or who satisfy the rules of intestacy and who inherit all or part of the deceased estates

Question 36

who are the executors

Answer 36

people appointed under the will to administer the distribution of the estate

Question 37

what is an intestate

Answer 37

someone who dies without leaving a will

Question 38

what is the law reform (Miscellaneous provisions) Act 1934?

Answer 38

when a C dies before they have received an award of compensation- it allows existing causes of action to happen after death e.g. claims for defamation and bereavement damages survive the death of either the C or D

Question 39

for a deceased C, what might the claim cover?

Answer 39

pain and suffering and loss of amenity (these end at date of death’, and damage to property, medical and other expenses, loss of income up to date of death

Question 40

what is the fatal damages act?

Answer 40

allows relatives of the deceased person to claim damages if the death was due to wrongdoing or neglect

Question 41

who can claim under the fatal accidents act?

Answer 41

executors on behalf of the dependants

Question 42

what are the 3 heads of the fatal accidents act?

Answer 42

dependency, bereavement, funeral expenses

Question 43

what is a dependency claim (FAA)

Answer 43

claim for economic loss by defendants whow ere financially dependant on the deceased (can also cover services e.g. gardening, DIY)

Question 44

what is a bereavement claim (FAA)

Answer 44

claim in reocognition of grief by defendants can be up to £15,120

Question 45

what is a funeral expenses claim (FAA)

Answer 45

defendants can recover costs of funeral services

Question 46

for a case under the FAA, what is multiplicand an multiplier?

Answer 46

multiplicand e.g. deceased net earnings + value of perks of job + value of any services they provided

multiplier e.g. based on balance of deceased spouses working life

Question 47

what things are not taken into account when calculating value of a Cs lost dependency?

Answer 47

prospects of remarriage, likelihood of future inheritance under a will or intestacy

Question 48

for a bereavement claim, who can claim damages?

Answer 48

wife, husband, civil partner etc