The courts of Tort: Procedure and damages Flashcards
Where does the burden and standard of proof lay in negligent cases.
It falls on to the claimant to prove that the defendant was negligent unless Res ipsa loquitur is alleged
What is the standard or proof in negligent cases
On the balance of probabilities
What is res ipsa loquitur?
‘The thing speak for itself’ The burden of proof shifts to the defendant to prove that they weren’t negligent and there is an ulterior explanation to the damage caused.
When is res ipsa loquitur applicable
If the events are under control of the defendant
If the events would not have happened unless someone was negligent
There is not other explanation for the events.
What is the purpose of compensatory damages
They are trying to put the claimant into the position they were before the tort was committed
What is the mitigation of loss
This is the general duty place upon claimants to minimise their losses
What are the two types of damages
Special damages and general damages
What are special damages
These are quantifiable financial losses, these are losses form the date of tort to the date of trial they can include loss of earning and medical expenses
Is there a block on the things you can claim on
Yes only reasonable expenses are recoverable as seen in the case of Cunningham
What are general losses
These are non-quantifiable losses they are not easy to calculate as they are future losses
What are the two types of general loses?
Pecuniary and non-pecuniary
What are pecuniary general damages
These are the future loss of earnings
How are pecuniary damages calculated
The average annual earnings lost x the number of years of loss.
What are non-pecuniary damages
They cover pain and suffering and the injuary caused. It also includes amenity.
Will anything reduce the amount of damages paid
If the claimant receives financial support from sources such as social security benefits
