remedies in tort Flashcards
what are damages?
a form of compensation for a claimant for losses they have suffered
what needs to be proved for a tort which is actionable per se
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
how are damages given for a tort that is actionable per se?
nominal damages- token amount of money
what are nominal damages usually?
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
for compensatory damages, how are they measured?
general idea is to put the C in the same position thye were in before the tort was moitted
what is the duty to mitigate?
the C cannot claim compensation for something they could have avoided by taking reasonable steps themselves (C should not profit)
what is the one action rule?
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
what are general damages?
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
what are special damages?
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
what are the two types of damages for personal injury?
pecuniary losses and non-pecuniary losses
what are pecuniary losses
capable of math calculation in money terms (suffered pre or post trial) e.g. loss of earnings, medical expenses
what are non-pecuniary losses
not capable of being calculated in money terms- Cs personal injury
what is loss amenity
loss in your quality of life and lifestyle changes that you have had to endure as a result of your injuries
what are examples of losses of amenities and personal injury
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?
how are damages for pain and suffering considered?
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
how are damages for loss of amenity considered?
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
how can you quantify non-pecuniary damages?
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
how are medical expenses considered?
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
can C claim for any other type of medical expense other than treatment?
yes if it resulted from the accident e.g. wheelchairs, adapting house dietary needs etc
can C recover costs of private medical care rather than NHS?
yes but not if they actually go with NHS and try to claim what it would’ve been if it was private
how are loss of earnings pre-trial considered
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
how are losses of earnings post trial considered?
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
loss of future earnings- what is mutiplicand?
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
loss of future earnings- what is multiplier?
the period of future loss i.e. how long the C cannot work for
how are the multiplicand and multiplier used to calculate damages?
multiplied together e.g. 25 years times 25000 pounds= 630000
how does the discount rate of 0.25% affect the lump sum?
demonstrates how their lump sum will increase because the multiplier increases
what does the discount rate mean for the C?
they won’t be over or under compensated
what happens when a C has been told they now have a lower life expectancy?
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
can a C recover the cost of all of these services as part of their damage award?
yes- Schneider v Eisovitch but has to show that the needs for services follows from the injury caused by the Ds negligence
can a C claim for a spouse who has taken time off work to care for them?
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
how is loss of earning capacity measured?
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
what are the various deductions from damages and exceptions?
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
which payments are not deducted from damages?
insurance, ill-health pensoins, charitabel payments
what is deducted for state benefits?
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
who are beneficiaries
people either named in will or who satisfy the rules of intestacy and who inherit all or part of the deceased estates
who are the executors
people appointed under the will to administer the distribution of the estate
what is an intestate
someone who dies without leaving a will
what is the law reform (Miscellaneous provisions) Act 1934?
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
for a deceased C, what might the claim cover?
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
what is the fatal damages act?
allows relatives of the deceased person to claim damages if the death was due to wrongdoing or neglect
who can claim under the fatal accidents act?
executors on behalf of the dependants
what are the 3 heads of the fatal accidents act?
dependency, bereavement, funeral expenses
what is a dependency claim (FAA)
claim for economic loss by defendants whow ere financially dependant on the deceased (can also cover services e.g. gardening, DIY)
what is a bereavement claim (FAA)
claim in reocognition of grief by defendants can be up to £15,120
what is a funeral expenses claim (FAA)
defendants can recover costs of funeral services
for a case under the FAA, what is multiplicand an multiplier?
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
what things are not taken into account when calculating value of a Cs lost dependency?
prospects of remarriage, likelihood of future inheritance under a will or intestacy
for a bereavement claim, who can claim damages?
wife, husband, civil partner etc
