Scope and calculation of damages Flashcards
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (HL) 39
damages - compensatory damages
Livingstone (plaintiff) owned an acre and a half of coal-bearing land with miners’ cottages. The miners (defendants) mined Livingstone’s land for coal because the miners believed they owned the mineral rights for the land. Livingstone did not know that he owned both the surface and mineral rights to the land. Livingstone sued the miners and sought to recover for the damage done to the houses and for the value of the coal that was extracted from his land. The trial court awarded Livingstone £515 in damages. An appellate court reduced the award to reflect the value of the coal if Livingstone had sold it at the time it was mined plus an amount to cover damage done to the houses caused by the mining. Livingstone appealed that decision and asked the court to restore the original damage award.
Kralj v McGrath [1986] 1 All ER 54 (QB) 61 (Woolf J)
aggravated damages
(Woolf J) (emphasis added): ‘It is my view that it would be wholly inappropriate to introduce into claims of this sort, for breach of contract and negligence, the concept of aggravated damages.’
Held, that (i) aggravated damages per se are not appropriate in cases of medical negligence, but where particular distress has been caused to the patient (as in the circumstances of this case) and that distress makes it more difficult for the patient to recover that fact can be taken into account in assessing the compensatory damages; (ii) similarly, grief itself is not compensatable unless it leads to nervous shock and if it does, and that causes the plaintiff to take longer to recover, that factor may lead to an increase in damages; (iii) the financial cost of a future pregnancy to replace a child whose death is caused by medical negligence is not too remote.
cf Young v Downey [2025] EWCA Civ 177 [33]: aggravated damages awarded to a secondary victim of psychiatric harm ( rare example of AD being given in the context of tort of negligence)
= declined to give AD in a case of negligence
During attempted delivery of twins in hospital the obstetrician put his arm inside P to attempt manual manipulation of the head of one of the babies. Shortly after birth the child died as a result of that treatment which was described as horrific and wholly unacceptable. P had had one child already, and she and her husband had planned to have three, so she claimed, in addition to the usual damages, damages for the future financial cost of replacing the dead child. Only quantum was in issue.
Rookes v Barnard [1964] AC 1129 (HL) 1221
punitive damages
Held, allowing both the appeal and the cross-appeal, and ordering a new trial on the question of damages, (1) that, on the facts, the defendants had committed the tort of intimidation; (2) that s.1 of the Trade Disputes Act 1906, afforded no defence, because the tort could have been committed by an individual and had it been so it would have been actionable; (3) (Lord Evershed dubitante) that s.3 of the Act of 1906 did not protect the defendants, as their interference with P’s employment was brought about by unlawful intimidation; but (4) that the facts disclosed in the summing-up showed no case for exemplary damages.
** ‘Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. It may well be thought that this confuses the civil and criminal functions of the law; and indeed, so far as I know, the idea of exemplary damages is peculiar to English law.’**
Facts: By an agreement made in 1949 between employers and employees, which formed part of each contract of employment, it was provided that no lockout or strike should take place and any disputes should be referred to arbitration. When P, whose office was subject of a “closed-shop” agreement, refused to rejoin the defendant union, the defendant’s members served notice on the employers that unless P was removed they would withdraw their labour. P brought an action for damages against the defendants for using unlawful means to induce the employers to terminate their contract of service with him, and/or conspiring to have him dismissed by threatening the employers with strike action if he were retained. A jury awarded P GBP 7,500 damages on the basis of a direction in the summing-up that any deliberate illegality might be punished by exemplary damages. The Court of Appeal reversed the decision, holding that, although the tort of intimidation existed, it did not cover a threat to break a contract. P. appealed further, and the defendants cross-appealed on the question of damages.
Duke of Sussex v MGN Ltd [2023] EWHC 3217 (Ch) [1610]
aggravated damages
‘The purpose of aggravated damages is not to punish, but to compensate a claimant for the circumstances in which an injury was done to them, which circumstances caused additional injury to the claimant’s proper feelings of dignity, self-respect and pride.’
Held: that senior executives and editors were aware of this. He gave judgment for the Duke of Sussex in the sum of £140,600 and judgment for Michael Turner in the sum of £31,650. The claims of the other two claimants Ms Sanderson and Mr Wightman are dismissed on limitation grounds.
Facts: made no effort to stop the phone hacking.
AT v Dulghieru [2009] EWHC 225 (QB)
punitiver damages
Held: the women brought successful claims agianst their captors in AD
facts: women were held captive in brothels and were forced to have sex with men.
Axa Insurance UK plc v FCS Ltd [2018] EWCA Civ 1330,
punitive damages
It was appropriate to award exemplary damages where a company, and those controlling it, had attempted to extract money from an insurance company by issuing two sets of personal injury proceedings based on fake accidents and supported by false documents. The circumstances fell within the second category of cases described in Rookes v Barnard (No.1) [1964] A.C. 1129, [1964] 1 WLUK 887, and the possibility of criminal or contempt proceedings being brought against the perpetrators was irrelevant to the question of whether an award of exemplary damages should be made.
Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29
punitive damages
Held, allowing the appeal,
- that the House was not bound by a clear or unequivocal decision inBroome v Cassell & Co Ltd [1972] A.C. 1027, [1972] 2 WLUK 97to hold that the power to award exemplary damages was limited to cases where the cause of action had been recognised before 1964 as justifying such an award,Broomedistinguished.
- The Court of Appeal had been wrong to apply that test by following the decision inAB v South West Water Services Ltd [1993] Q.B. 507, [1992] 11 WLUK 229which had been wrongly decided,AB v South West Wateroverruled. The remedy in principle should not be so limited. It was not appropriate for a court to undertake a trawl of the authorities to attempt to determine whether awards of damages for misfeasance before 1964 might have included an award of exemplary damages, particularly since no distinction had been made between aggravated and exemplary damages until after the case of*Rookes v Barnard (No.1). The issue, therefore, was whether it was arguable that exemplary damages could and, if the facts were established, should be awarded for the tort of misfeasance in public office.
- Given that the Chief Constable had conceded that the facts fell within the first category inRookes, the appeal should accordingly be allowed,Rookesapplied. Lord Scott of Foscote observed that exemplary damages in civil cases probably ought to be abolished as anomalous and no longer needed, and if retained should not be available in cases of negligence, nuisance, strict liability and breach of statutory duty except where the statute in question authorised the remedy.As a matter of principle, exemplary damages should not be available where the claim was one of vicarious liability.
Facts: K appealed against a finding ((2000) 2 L.G.L.R. 822) that exemplary damages were only available in cases where it could be shown that the cause of action had been recognised before 1964 as justifying such an award. K had claimed exemplary damages following the the actions of a police officer who had forged K’s signature on a withdrawal of a complaint of theft. The Chief Constable had admitted that the officer’s conduct had amounted to a misfeasance in public office, however the Court of Appeal had found that K could not claim exemplary damages, as such damages had not been awarded for that particular tort before 1964.
Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 (HL)
contemptuous damages
Held: Jury verdicts were not immune from review, but it was a very serious thing to stigmatise as perverse a unanimous jury verdict. The Court of Appeal were wrong to do so where there was an alternative and explicable explanation interpretation of the jury’s verdict. However, on the alternative explicable interpretation the jury’s award of damages could not be upheld, and would be substituted for a nominal award. The House of Lords had the inherent power to substitute the order which it concluded the Court of Appeal should have made.
Facts: The Claimant footballer brought a libel action against the Defendants for a series of publications in the Sun newspaper alleging that he had fixed or agreed to fix football matches for money. The jury had awarded him £85,000 in compensatory damages but this had been set aside by the Court of Appeal as perverse.
(1) Whether a jury’s verdict could be reviewed;
(2) Whether the Court of Appeal were right to review the jury’s verdict; (3) Whether the House of Lords had the power to substitute an order of its own for that of the Court of Appeal’s
Donnelly v Joyce [1974] QB 454 (CA
cost of care - pecuniary loss
That argument failed: the court emphasized that the plaintiff’s claim was not to be regarded in relation to another’s loss; rather the plaintiff’s “loss is the existence of the need for those nursing services, the value of which for purposes of damages – for the purpose of the ascertainment of the amount of his loss – is the proper and reasonable cost of supplying those needs [emphasis added].”30 That cost was quantified as being equal to the mother’s loss of wages.
Facts: relating to a mother who had given up employment to take care of her injured child. The defendant argued that a small child had no legal or moral obligation to reimburse his or her parents for their care following on the tortious accident and that therefore the child, as plaintiff, could not recover the cost of such care.
Hunt v Severs [1994] 2 AC 350 (HL) 358
cost of care - pecuniary loss
(Lord Bridge):
> ‘The law with respect to the services of a third party who provides voluntary care for a tortiously injured plaintiff has developed somewhat erratically in England. The voluntary carer has no cause of action of his own against the tortfeasor. The justice of allowing the injured plaintiff to recover the value of the services so that he may recompense the voluntary carer has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result. … [I]t is nevertheless important to recognise that the underlying rationale of the English law … is to enable the voluntary carer to receive proper recompense for his or her services and … the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer. By concentrating on the plaintiff’s need and the plaintiff’s loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly v Joyce diverts attention from the award’s central objective of compensating the voluntary carer. Once this is recognised it becomes evident that there can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself has rendered, a sum of money which the plaintiff must then repay to him.’
The House of Lords held in favour of the defendant. The claimant could not recover costs incurred or the value of services gratuitously rendered by the defendant.
Prinicple: A claimant can recover the value of third-party services voluntarily and gratuitously rendered to them. However, they cannot do this where those services are provided by the defendant. The same is true for any costs the defendant incurs visiting or looking after the claimant.
The claimant was seriously injured while riding in the pillion of the defendant’s motorcycle. The defendant cared for her, and the pair ultimately married. In the subsequent negligence action, the defendant admitted liability but disputed which damages were recoverable. In particular, he argued that the claimant could not recover his hospital travel expenses or the value of the caring services he gave her. The claimant argued that the damages should be recoverable, pointing to past cases which allowed claimants to recover the value of voluntary third-party expenses and caring services gratuitously provided by third parties. The defendant argued that the rule should be different when services are provided by the defendant themselves.
Pickett v British Rail Engineering [1980] AC 136 (HL):
pecuniary loss - loss of earnings
)
C can recover for the lost years. Justification: robbing the C of the ability to leave money to their loved ones
➢ Whipps Cross University NHS Trust v Iqbal [2007] EWCA Civ 1190: no recovery for the lost years in a claim by a young child. They did give a sum for loss of earnings but not for the lost years (unavailable on principle to a child Claimant
Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 (HL)
pain and suffering - non-pecuniary loss
This is a form of non-pecuniary loss calculated according to the claimant’s subjective perceptions. This means that a claimant who is left unable to feel pain or suffering (such as by being in a coma) will not be awarded much, if any, damages
NB: was still awarded loss of amenity which was the subject of a dissent => NB: Powerful dissent by Lord Reid – essentially what was said by the LC
‘What is the basis on which damages for serious injuries are awarded? The determination of that question in the ordinary case where the injured person is fully conscious of his disability will go far to decide how to deal with a case like Wise v Kaye where the injured person was wholly unconscious with no prospect of ever regaining consciousness or like the present case where the respondent is only conscious to a slight extent.’
After an operation, C was barely sentient and entirely dependent on 24 hour carers (coma - vegetative state)
H West & Son v Shephard [1964] AC 326 (HL) 349
non-pecuniary loss - loss of amenity
‘An unconscious person will be spared pain and suffering and will not experience the mental anguish which may result from knowledge of what has in life been lost or from knowledge that life has been shortened. The fact of unconsciousness is therefore relevant in respect of and will eliminate those heads or elements of damage which can only exist by being felt or thought or experienced. The fact of unconsciousness does not, however, eliminate the actuality of the deprivations of the ordinary experiences and amenities of life which may be the inevitable result of some physical injury.’
Loss of amenity = assessed objectively
Parry v Cleaver [1970] AC 1 (HL)
non-pecuniary loss - deductible benefits
Bradburn v Great Western Railway Co (1874-75) LR 10 Ex 1 => same for insurance payments
charitable donations are not deductibe benefits
- Heil v Rankin [2001] QB 272
Heil v Rankin (2001) stipulated rises of up to 33% for the most serious injuries, tapering down to awards of £10,000, below which there would be no change. The top limit of awards for ‘catastrophic injuries’ was raised from £150,000 to £200,000
Law Commission recommendations for an increase in the level of damages to be awarded for non pecuniary loss were submitted to the court for final consideration. It was argued that the conventional approach for the assessment of damages was producing awards which were far too low in modern society. The court held, inter alia, that (1) it would retain conventional principles for the assessment of general damages; (2) awards for catastrophic injuries were in need of being increased by approximately one third; (3) awards presently below GBP 10,000 would not be increased, and (4) adjustment for awards between the higher bracket and the lower bracket would be subject to a downward taper.
Design Progression Ltd v Thurloe Properties Ltd [2004] EWHC 324 (Ch)
PD (under Lord devlin’s second categories) can be awarded even when the D has made no gain, not gain-based damages.
What did the law commission say about hunt v severs in their 1999 Report
The House of Lords decision in Hunt v Severs [1994] 2 AC 350 ruled that where the victim’s carer is also the person responsible for their injuries, it is not possible to recover damages for the gratuitous care the latter has provided. This rule is out of touch with the reality of many common personal circumstances following a serious injury. Take, for example, a child who suffers life-changing injuries travelling as a passenger in a car while the parent is driving. The parent will almost always be heavily involved in caring for the child after the injury, often carrying a heavy burden of guilt as well as significant caring responsibilities.
The rule has the potentially perverse effect of forcing claimants to rely on paid, professional support that might otherwise be provided by the responsible loved one, increasing the level of damages the defendant must pay. Defendant insurers will often take a pragmatic approach to this rule and agree to disapply it. This approach is consistent with the recommendation of the Law Commission as long ago as 1999 in their Report ‘Damages for Personal Injury: Medical, Nursing and other Expenses’, which proposed that the rule in Hunt v Severs be reversed
Frankiln v SouthEastern Rlwy
The Court held in favour of the claimant. The claimant was entitled to damages reflecting his economic losses (the inability to earn money) resulting from his son’s death.
The claimant was an elderly and infirm man whose son assisted him at work. His son was killed in a train collision, which was caused by the negligence of the defendant’s employees. This affected the claimant’s ability to earn money, since he no longer had his son’s assistance at work. He sued the defendant for his losses.
