Remedies: Personal injury and death Flashcards
A client is administering the estate of his deceased cousin. The client’s cousin was a passenger in a car that was involved in a road traffic accident. The accident was entirely caused by the negligence of the driver of an oncoming vehicle, which crashed head on into the car in which the client’s cousin was travelling. The client’s cousin was severely injured. She survived for two weeks during which time she was conscious and in great pain. She then died. The client’s cousin had been the sole carer for her five-year-old daughter. The client’s cousin did not suffer any loss of earnings as a result of the accident as she received full sick pay from her employer. The client’s former employer covered the costs of the funeral.
Which of the following statements best describes the claims that are able to be brought?
A-There are two possible claims that can be made under the Fatal Accidents Act 1976.
B-A claim for bereavement damages can successfully be made under the Fatal Accidents Act 1976.
C-The estate can bring a claim for damages under the Law Reform (Miscellaneous Provisions) Act 1934 for the pain and suffering experienced in the period between the accident and death.
D-A successful claim under the Law Reform (Miscellaneous Provisions) Act 1934 can be brought for the benefit of the estate for the loss of earnings.
E-A successful claim under the Law Reform (Miscellaneous Provisions) Act 1934 can be brought for the benefit of the estate for cost of the funeral.
Option C is correct because the estate can bring a claim for damages for the pain and suffering experienced in the period between the accident and death under the Law Reform (Miscellaneous Provisions) Act 1934.
Option A is wrong because there are three possible claims under the Fatal Accidents Act - loss of dependency, bereavement and funeral expenses if paid by the dependants. Here only the loss of dependency claim would be successful.
Option B is wrong because there are no people who qualify under the Fatal Accidents Act 1976 for bereavement damages.
Option D is wrong because no loss of earnings was suffered.
Option E is wrong because the estate did not incur the cost of the funeral expenses as these were met by the employer.
A woman was killed in an accident at work. Her employer has admitted full liability for the accident. The woman is survived by her husband and by her two children, a daughter aged 22 years and a son aged 13 years. The woman is also survived by both of her parents.
Which member(s) of the woman’s family will be entitled to claim bereavement damages from the woman’s employer?
A-Her husband.
B-Her son
C-Her husband and her son.
D-Her husband and both of her children.
E-Her husband and both of her parents.
Option A is correct because the deceased’s surviving spouse is entitled to claim bereavement damages under the Fatal Accidents Act 1976.
Options B, C and D are wrong because irrespective of their age, children are not eligible to claim bereavement damages in respect of the death of a parent (Fatal Accidents Act 1976).
Option E is wrong because the only situation in which the parents of the deceased are entitled to claim bereavement damages is where the deceased was a minor who was never married or a civil partner (Fatal Accidents Act 1976).
A widow consults a solicitor about a possible claim on her husband’s death. She tells the solicitor that her husband died 3 weeks after an accident at work. The accident involving a vat of boiling glue. Her husband was badly burned when machinery broke off and fell into the boiling glue. The resulting splashes caused severe burns from which he later died. He was not wearing his personal protective equipment at the time as he found it uncomfortable.
The employer has not paid anything in respect of the death, but her husband took out life insurance when their son was born which has paid out £200,000 to the widow.
Which of the following statements is correct?
A-The insurance policy will be ignored in calculating any damages to be paid to the widow.
B-The employer would not be able to argue the defence of contributory negligence as this is a claim on death.
C- The widow would be able to claim damages under the Fatal Accidents Act 1976 for her husband’s loss of earnings between the accident and death.
D-If the widow inherited under her husband’s will, this would reduce the amount of damages which she would be entitled to for a successful claim.
E-The widow would be entitled to claim for her husband’s pain and suffering as part of her claim under the Fatal Accidents Act 1976.
Option A is the correct answer. Any insurance payable will be ignored in calculating the claims under the Law Reform (Miscellaneous Provisions) Act 1934 and FAA 1976.
Option B is wrong because the employer is able to argue the partial defence of contributory negligence in a fatal claim. Here the deceased failed to take reasonable care for his own safety and this contributed to the harm suffered, so the damages awarded to the estate or dependants may be reduced.
Option C is wrong because damages for the period between the tort and death are not recoverable under the FAA. They are recoverable under the LR(MP)A 1934.
Option D is wrong because any benefit received under the will of the deceased would be ignored in calculating the claim.
Option E is wrong because damages for pain suffering and loss of amenity are not available under the FAA but under the LR(MP)A.
A client instructs a solicitor following a road traffic accident involving their spouse. The client’s spouse suffered injuries from the accident, survived for a period of two months but then died as a result of their injuries. The client alleges that the road traffic accident occurred as a result of another driver’s negligence. At the time of the accident the client’s spouse worked as a managing director of a large supermarket chain. The client is the sole beneficiary under their spouse’s will. The reasonable funeral expenses have been paid by the estate.
Which of the following options correctly describes the damages recoverable by the client in the event that they establish the other driver was negligent?
A-Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to receive a bereavement award.
B-Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover damages for loss of dependency (the loss of future earnings of their spouse).
C-Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover damages for the loss of amenity suffered by their spouse during the two month survival period.
D-Under the Fatal Accidents Act 1976 the client will be entitled to recover their spouse’s funeral expenses.
E-Under the Fatal Accidents Act 1976 the client will be entitled to recover compensation for property belonging to their spouse which was destroyed during the road traffic accident.
Option C is correct because under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover damages for the loss of amenity suffered by their spouse during the two month survival period.
Option A is wrong because a bereavement award is recoverable by the spouse of the deceased under the Fatal Accidents Act 1976, not under the Law Reform (Miscellaneous Provisions) Act 1934.
Option B is wrong. Loss of dependency (being the loss of pecuniary benefits which the client would have received from his spouse, and which might include the loss of her future earnings) are recoverable under the Fatal Accidents Act 1976, not under the Law Reform (Miscellaneous Provisions) Act 1934.
Option D is wrong because where funeral expenses are reasonable in amount and paid by the estate, they are recoverable under the Law Reform (Miscellaneous Provisions) Act 1934 not under the Fatal Accidents Act 1976.
Option E is wrong because the client will be entitled to recover compensation for property belonging to their spouse which was destroyed during the road traffic accident under the Law Reform (Miscellaneous Provisions) Act 1934 not under the Fatal Accidents Act 1976.
The claimant is a specialist machine tool operator whose hand was crushed in a setting machine. Their employer has admitted liability. The claimant earned £30,000 net prior to the accident with the expectation that they would have been promoted to a position with a salary of £40,000 net. Medical evidence confirms that the claimant will never be able to return to their previous occupation. However, the medical evidence also confirms that they should be able to return to work in a less skilled occupation earning £15,000 net. The claimant is 30 years old and plans to retire at 65.
Which of the following statements best explains how the claimant’s claim for future loss of earnings should be calculated?
A-Multiplier (35) x Multiplicand (£25,000 (£40,000 minus £15,000)).
B-Multiplier (35) x Multiplicand (£40,000).
C-Multiplier (35.11) x Multiplicand (£25,000 (£40,000 minus £15,000)).
D-Multiplier (35.11) x Multiplicand (£30,000).
E-Multiplier (35.11) x Multiplicand (£40,000).
Option C is correct. The multiplier is correct because applying the current discount rate of minus 0.25% will increase the multiplier from 35 (years) to 35.11 using the Ogden tables. (Note, you are not expected to know the actual multiplier, only that it will increase using the current discount rate of minus 0.25%.) The multiplicand is also correct because it takes into account both the claimant’s promotion prospects and also the claimant’s prospects of doing a less well paid job. The figure of £25,000 is correct as it is the claimant’s annual loss of future earnings.
Option A is wrong as the multiplier is based upon the number of years that the claimant will not be able to work in their chosen occupation (here 35 years until they would have retired), but it must be adjusted in accordance with the discount rate using the Ogden tables.
Option B is wrong for the same reason but also because the multiplicand is incorrect. While the multiplicand can be adjusted to take into account the claimant’s promotion prospects, it should also take into account the claimant’s prospects of doing a less well paid job. This is an aspect of the claimant’s duty to mitigate their loss.
Options D and E are incorrect because, while the multiplier is correct, the multiplicands are wrong.
A solicitor acts for the estate of a person who was killed when a driver negligently collided into them. The defendant’s insurer has admitted liability. The deceased was a single parent of a son who is18 years old. The son has a place to go to university full-time later in the year. Under the deceased’s will they left all of their estate to their son. The estate has been valued at £800,000.
Which of the following statements best explains whether the deceased’s son’s claim for loss of dependency will be successful?
A-Yes, because the deceased’s son is on the statutory list of people who can claim.
B-Yes, because the deceased’s son is on the statutory list of people who can claim and they were clearly financially dependent on the deceased.
C-Yes, because the son was clearly financially dependent on the deceased.
D-No, because the son is aged 18 and, therefore, an adult.
E-No, because the son is due to inherit £800,000 and cannot, therefore, be said to be financially dependent upon the deceased.
Option B is correct as it sets out the two criteria that must be satisfied for a successful claim for dependency under the Fatal Accidents Act 1976 – they must be both on the statutory list of people who can claim and be financially dependent on the deceased. The son satisfies both criteria as a child of the deceased who was financially dependent on the deceased (see below).
Options A and C are wrong as they do not set out both criteria.
Option D is wrong because, while generally a child’s period of dependency ends when they reach the age of 18, it is extended where the child is in, or as here, expected to be in full-time education.
Option E is wrong as any moneys a dependant is due to inherit from the deceased are disregarded under the Fatal Accidents Act 1976.
A claimant is involved in a road traffic accident whilst on her way to see her favourite band play in a concert. She was carefully driving her car on a motorway when without warning a motorcyclist pulled into her path. As a result of the accident the claimant was unable to attend the concert and her knee was injured. She was shaken & very upset and unable to return to her hairdressing business for a month.
Which statement best describes the types of losses that the claimant can recover as a result of the accident?
A-The cost of the theatre ticket, compensation for the damage to her knee and for her loss of earnings.
B-The cost of the theatre ticket, compensation for her injured feelings and for loss of earnings.
C-Compensation for her injured feelings, for the damage to her knee and for her loss of earnings.
D-Compensation for her injured feelings and for the damage to her knee.
E-Compensation for the damage to her knee and for her loss of earnings.
Option E is correct as these types of losses are generally recoverable in negligence.
Option A is wrong because the theatre ticket is not recoverable as it is pure economic loss.
Option B is wrong because both the theatre ticket and compensation for her injured feelings are not recoverable. Also, compensation for the damage to her knee is recoverable.
Option C is wrong because injured feelings is not recoverable.
Option D is wrong because injured feelings is not recoverable but loss of earnings is recoverable.
A pedestrian was walking on the pavement towards her office when she was struck by a lorry which had veered off the road. The lorry driver was driving negligently at the time. The pedestrian was killed instantly. In addition, the briefcase that she was carrying was damaged beyond repair. The pedestrian was a single parent and is survived by her two children, a son aged 15 years and a daughter aged 19 years.
Which of the following statements best explains the damages that will be recoverable from the lorry driver as a result of the pedestrian’s death?
A-The pedestrian’s son can recover bereavement damages.
B-The pedestrian’s son and daughter can both recover bereavement damages.
C-The pedestrian’s estate can recover damages in respect of her damaged briefcase.
D-The pedestrian’s estate can recover damages for the pedestrian’s loss of amenity and in respect of her damaged briefcase.
E-The pedestrian’s estate can recover damages for the pedestrian’s future loss of earnings and in respect of her damaged briefcase.
Option C is correct because her estate will be able to recover damages in respect of her briefcase by virtue of the Law Reform (Miscellaneous Provisions) Act 1934.
Options A and B are wrong because irrespective of their age, children are not eligible to claim bereavement damages in respect of the death of a parent (Fatal Accidents Act 1976).
Option D is wrong because as the pedestrian was killed instantly, she did not suffer any loss of amenity.
Option E is wrong because damages for the deceased’s future loss of earnings are not recoverable by the estate. Damages for loss of dependency may be recoverable under the Fatal Accidents Act 1976.
A claimant employed as a construction worker suffered an accident at work, where his right hand was crushed in machinery. His wedding ring was destroyed in the accident. He underwent emergency surgery and was heavily bandaged for six weeks after the accident, requiring a number of follow-up hospital appointments. He had to take strong pain killers every day and incurred prescription charges for these. As the operation was only partially successful, he has been unable to return to work, or return to his hobby of playing tennis. The claimant’s employers have admitted liability in full for the accident and the parties are seeking to negotiate damages.
Which of the following will be considered by the claimant’s solicitors as a recoverable non-pecuniary loss?
A-The claimant’s loss of earnings prior to settlement.
B-The cost of the prescription charges incurred.
C-The cost of travelling to and from hospital appointments.
D-The claimant’s inability to pursue his hobby of tennis.
E- The cost of his wedding ring
Option D is correct because non-pecuniary losses are not capable of being calculated in money terms. The main example of non-pecuniary losses is the claimant’s pain and suffering and loss of amenity. Loss of amenity is the loss of the claimant’s enjoyment of life due to their injury, here the claimant’s inability to pursue his hobby of tennis.
Options A, B, C and E are examples of pecuniary losses. Pecuniary losses are those which are capable of mathematical calculation in money terms. These losses may have been suffered pre- or post-trial but can nevertheless be calculated in terms of money.
A man is seriously injured in an accident at work caused by his employer’s negligence. Medical evidence shows he will not be able to work again and will require extensive medical treatment and care for the rest of his life. His mother will give up her job to provide his care and the medical treatment will be provided through a private hospital.
In a claim by the man for his personal injury which of the following options best summarises the heads of loss he can expect to receive as damages from his employer?
A-The man can recover damages for pain and suffering, loss of amenity, loss of earnings and medical expenses but no damages are payable as regards his mother’s loss of earnings.
B-The man can recover damages for pain and suffering, loss of amenity, loss of earnings and medical expenses and for his mother’s loss of earnings as her loss is to fulfil his need for care.
C-The man can recover damages for pain and suffering, loss of amenity, loss of earnings, loss of earning capacity, medical expenses and for his mother’s loss of earnings as her loss is to fulfil his need for care provided this does not exceed the commercial rate for providing the services she gives.
D-The man can recover damages for pain and suffering, loss of amenity, loss of earnings but no award will be made for medical expenses as care can be provided by the State through the National Health Service and the man has a duty to mitigate his loss by using the NHS.
E-The man can recover damages for pain and suffering, loss of amenity, loss of earnings, medical expenses and for his mother’s loss of earnings as her loss is to fulfil his need for care provided this does not exceed the commercial rate for providing the services she gives.
Option E is the correct answer. This accurately summarises the heads of loss for which the man would get damages on these facts.
Option A is wrong as damages are payable where a relative gives up work to provide care. In Housecroft v Burnett [1986] 1 All ER 332 the court held that the starting point was the loss of earnings suffered by the carer. However, the costs cannot exceed the commercial rate for providing the services.
Option B is wrong as it does not reflect the limit on how much can be recovered for the mother’s loss of earnings.
Option C is wrong as the man cannot recover damages for loss of earning capacity as he is unable to work at all. Loss of earning capacity would apply if the claimant was currently still working but would suffer a disadvantage on the job market in the future,
Option D is wrong because of s2(4) of the Law Reform (Personal Injuries) Act 1948 whereby a claimant cannot be found to have failed to mitigate their loss by paying for private treatment rather than obtaining free treatment under the National Health Service.
A claimant was seriously injured in an accident. While crossing a road, she was hit by a car driven by the defendant. It is not until five months after the accident that the claimant recovers enough to fully understand the nature of her situation and that the defendant was responsible. A consultant overseeing the claimant advises that she will be unable to return to work.
Which of the following statements best describes the option open to the claimant?
A-The claimant may sue the defendant for negligence and seek damages for her pain suffering and loss of amenity.
B-The claimant may sue the defendant for negligence and seek damages for her pain suffering and loss of amenity from the date of the trial.
C-The claimant may sue the defendant for negligence and seek damages for her loss of earnings from the date of the accident to the trial.
D-The claimant may sue the defendant for negligence and seek damages for her pain suffering and loss of amenity from the date of the accident and pure economic losses.
E-The claimant may sue the defendant for negligence and seek special damages and general damages.
Option E is correct because it accurately describes the different heads of loss the claimant can recover. The claimant may sue the defendant for negligence and seek special damages i.e. those that are capable of precise calculation at the time of the trial, and general damages i.e. those losses which are not capable of being calculated precisely and are left for a court to determine. General damages include pain suffering and loss of amenity and all losses incurred after the trial.
Option A is wrong because it is incomplete and does not refer to the special damages or future losses.
Option B is wrong because damages for pain suffering and loss of amenity are recoverable from the date of the accident, not the date of the trial. It also does not refer to other losses she can recover.
Option C is wrong because it does not refer to general damages. The loss of earning will extend into the future not just up to the date of the trial.
Option D is wrong because pure economic loss is only recoverable if there is a special relationship between the parties which is not the case in this scenario.
