Tort 6: Remedies for Personal Injury and Death Flashcards
What are the objects of damages for inured claimants?
To place the claimant so far as is possible in same position they would have been in had the tort not occurred.
What is the duty to mitigate?
Claimant has a duty to take reasonable steps to mitigate their loss.
for example:
- seeking medical treatment
- seeking suitable alternative employment
Tort: What are the types of losses that a claimant may claim for (general)?
Pecuniary Losses
- financial losses suffered as a result of the injury caused
- Claimant entitled to recover damages for several types of pecuniary losses
Non-Pecuniary Losses
- non-monetary losses, such as paid and suffering of injury and loss of amenity
What types of pecuniary losses can an injured claimant claim for in tort?
Loss of past income
- between injury and trial/settlement
- can claim net loss of wages (so minus tax, national insurance and sick pay from employer)
Loss of future income
- if injuries are such that they cannot return to any type of work; or
- cannot return to same employment rather alternative work at lower rate
- claimant has shorter life expectancy
Expenses
- cost of medical treatment
- cost of care
- cost of necessary equipment and adaptations to the home
How are damages for different types of loss of income assessed? how is it paid?
Always paid as lump sum
Unable to return to any work
- take pre-accident annual income multiplied by number of years of lost income
- adjusted for contingencies of life (such as possibility that they may have lost job)
Limited in Return to Work (at lower pay)
- difference between past and present income multiplied by years left to work
Shortened Life Expectancy
- income multiplied by lost years
- adjusted for what they won’t have to spend on their own living expenses in lost years
Can a claimant recover damages for care if this is provided by a relative of theirs for free?
Yes can still claim a reasonably cost for such care
- like normal
Can a claimant recover expenses for medical treatment if they decide to go private rather than NHS?
Yes makes no difference
Claimant not expected to mitigate their loss by accepting NHS treatment.
How are non-pecuniary losses assessed?
Can claim past and future loss
- courts assess this using published guidelines or sometimes statute
What non-pecuniary losses can a claimant in a coma claim?
Cannot claim for pain or suffering for time they spent in coma
Can claim for loss of amenity for time they were in coma
Can claimants in tort claim damages for property? How is this assessed?
Destroyed property
- cost of replacement
Damaged Property
- based on diminution in value (often same as cost to repair)
Both Cases
- can recover consequential costs, such as temporary hire of a replacement
What is the difference between special and general damages?
Special damages
- can be precisely calculated at time of trial
General damages
- need to be assessed by the court
What damages are always available on death of claimant? Which are not?
Their existing case of action may be continued for benefit of their estate regardless if death was due to tort or not.
Can recover
- damages for paid, suffering and loss of amenity BEFORE death
- expenses and loss of earning BEFORE death
Cannot recover
- damages for period after death
- defamation claims
What happens to tort case if defendant dies?
Cause of action against defendant continues and may be brought against their estate
What damages are available if only if claimant dies as a result of the tort? What are the requirements?
Bereavement only to:
- spouse/civil partner;
- cohabiting as spouse for 2+ year immediately before death; or
- parents (if deceased was a minor and never married)
Loss of Dependancy if:
- (close relatives) spouse, cohabiting as spouse for 2+ years before death, parent, child/treated as child, sibling, aunt/uncle; and
- was financially dependant on deceased.
Funeral expenses
