Tort Law - Damages Flashcards
Grobbelaar v News Group Newspapers general
Match fixing and bribes
What damages have a punitive aspect?
Aggravated
CoA announced across-the-board increases in damages for non-pecuniary loss
Simmons v Castle
No speech, limited understanding
West & Son v Shephard
What are the two ways to apportion pecuniary loss damages?
Lump sum or periodical payment
What is the typical payment of general non-pecuniary damages?
Lump sum
Who is covered under s.1A FAA 1976?
Parents of a child under 18 and a spouse
Judicial Studies Board
publishes guidance on non-pecuniary loss damages
What case said multiplier method is based on current life expectancy?
Pickett v British Rail Engineering
Match fixing and bribes
Grobbelaar v News Group Newspapers
What was the personal approach advocated by the LC?
Both pain and suffering and loss of amenity assessed subjectively
What did L&O comment on Damages Act 1996 and its view on ILGS?
Economic circumstances mean investments may in fact lose value relative to earnings now, even in an ILGS
What is the general purpose of tort damages?
To compensate C and put them back in their original position
Lim Po-Choo v Camden & Islington general
Barely sentient and totally dependent
What section of what Act directs courts to disregard benefits to dependant if C hadn’t died
S.4 FAA 1976
Ashley v Chief Constable of Sussex Police
supportive of specific ‘vindicatory damages’
R v Criminal Injuries Compensation Board, ex p K judgment
Disregard replacement services by 3rd which form a benefit to dependant
Kemp & Kemp
Reports injury awards
Why can the case of Thompson v Arnold be criticised?
Why should a claim under FAA 1976 be more generous for lost years than when by C, as both aim to provide for dependants after C’s death
What judge in what case gave three categories of case of exemplary damages?
Lord Devlin in Rookes v Barnard
In what case did the HoL say that lump sums are assumed to be invested in ILGS?
Wells v Wells
What periodical payment order anticipates changes in circumstances to increase or decrease payments?
Stepped order
Who thought the deterrent effect of EDs on G was ‘fanciful’?
lord Scott in Kuddus v Chief Constable of Leicestershire
Davies v Taylor general
Widow, affair, left
Kuddus v Chief Constable of Leicestershire per Lord Wilberforce
Questioned limitation to G, considering the power of international companies
Cox v Hockenhull judgment
State benefits can found dependency
Widow, affair, left
Davies v Taylor
What judge in what case suggested a claim for future lost earnings should be blocked under AJA and allowed under FAA76 for dependants?
Gregg v Scott, Lord Phillips
West & Son v Shephard judgment
Unconsciousness doesn’t eliminate loss of amenity
What case gave guidance on quantum of aggravated damages?
Thompson v Commissioner of Police for the Metropolis
Why did LJ Woolf in Kralj v McGrath reject aggravated damages in negligence?
Inappropriate to assess HOW careless D has been
What section of what Act bars periodical payments unless ‘reasonably secure’?
S.2(3) DA96
R v Criminal Injuries Compensation Board, ex p K general
Aunt and uncle, 3 kids
Davies v Taylor judgment
Need to prove a not insubstantial chance she might have returned
Cattle v Stockton Waterworks
Strict rules on PEL
Gregg v Scott on AJA 1982
Per Lord Phillips, preferable to block claim for future lost earnings and allow a claim under FAA76, believed to be achieved through a purposive interpretation of the LR(MP)A
Wells v Wells judgment
Assume C invests money in ILGS, promising proof of investment against inflation
West & Son v Shephard general
No speech, limited understanding
What two cases show the difference between the assessment of loss of amenity and the assessment of pain and suffering?
West & Son v Shephard; Lim Po-Choo v Camden & Islington
S.4 FAA 1976
Directs courts to disregard benefits to dependant if C hadn’t died
What case shows award to a child 2.5 times national average?
Cassell v Riverside HA
What damages are awarded automatically in a tort claim?
Nominal damages
National earning average
Croke v Wiseman
Franklin v South Eastern Railway on valuing FAA 1976
Only for pecuniary loss damages
Prospect of divorce considered under FAA 1976
Owen v Martin
How do the Law Commission argue a clean break can still be achieved in a periodical payment order?
Purchase of an annuity/through insurance
Thompson v Arnold
Suggestion of more generous calculation for lost years than when by C
Three helpful sources for assessment of non-pecuniary loss damages
Simmons v Castle; Kemp & Kemp; Judicial Studies Board
Leveson Report
Suggested EDs available for media torts and libel and slander
Crime and Courts Act 2013
ED available whenever D incurs liability for the ‘publication of news-related material’ and shows ‘outrageous disregard’ for C’s rights
What is the interest payable on special damages?
Half the special investment rate
When did the LC suggest no award of exemplary damages?
If a criminal sanction has already been imposed
If there was a defence available against the deceased, what happens in a claim under FAA 1976?
Applies there also
Ogden tables
Relevant discount rate for inflation
Name 3 types of non-compensatory damages
Nominal, contemptuous and exemplary
Case showing national earning average is the starting point for lump sum to children?
Croke v Wiseman
What case shows C’s preference is not determinative for s.2(1) DA96?
Morton v Portal
What is the name given to financial losses up to the date of the trial?
Special damages
What tort claim does not get nominal damages and why?
Nuisance - no action without proof of loss
Lord Reid in Cassell v Broome
exemplary damages inappropriate but too embedded
C’s preference is not determinative for s.2(1) DA96
Morton v Portal
Why is the parallel ECHR bereavement claim unlikely to be important in England?
Statutory remedy for Article 2 ECHR means no widening of FAA to comply
Franklin v South Eastern Railway
Calculate damages for FAA 1976 based on ‘reasonable expectation of pecuniary benefit’ if C had lived
S.2(2) DA96
Courts can use periodical payments for other kinds of personal injury damage if CONSENT
Kralj v McGrath judgment
LJ Woolf rejected AD in negligence
What pecuniary losses are recoverable in full?
Pre-trial pecuniary loss
Burns v Edman judgment
Husband’s wage was from criminal activity so no claim by widow - ex turpi causa
Awards in Ireland
Heil v Rankin
What judge in what case rejected the excessive emphasis placed on consistency in assessing non-pecuniary loss damages?
Lord Woolf in Heil v Rankin
What are aggravated damages?
To reflect pride and hurt feelings
What tort is excluded from Law Reform (Miscellaneous Provisions) Act 1934?
Defamation
Civil Law Reform Bill Consultation Paper
Suggested damages to dependant for gratuitous services by 3rd, but then personal obligation to account to 3rd
What were the 3 purposes suggested by the Royal Commission for non-pecuniary loss awards?
A palliative, to allow C to purchase alternative sources of satisfaction and to meet hidden expenses not recoverable as pecuniary loss
What section of what Act gives a limited class who can claim for bereavement?
S.1A FAA 1976
S.2(1) DA96
Allows for periodical payments in regard to future pecuniary loss of personal injury
What Act allows courts to make a ‘variable order’?
(Variation of Periodical Payments) Order 2005
What restriction was thought to operate on exemplary damages?
Cause of action
Is s.2(1) DA96 dependent on consent of the parties?
No
Rowe v Dolman
For s.2(1) DA96 consider if there is CN and if annual sum would cover C’s needs
What case confirmed West & Son v Shephard?
Lim Po-Choo v Camden & Islington
Rowlands v Chief Constable of Merseyside Police judgment
Vicarious liability still allows ED claim
What Board publishes guidance on non-pecuniary loss damages?
Judicial Studies Board
What case gives the common law standing for death on damages for dependants?
Baker v Bolton
Rowlandson v Merseyside judgment
AD for pride and dignity but not for feelings already covered under basic damages
S.2(3) DA96
Bars periodical payments unless ‘reasonably secure’
what three things did Lord Devlin say one should bear in mind for exemplary damages in Rookes v Barnard?
P can only recover if he is the victim, may need to place arbitrary limits on ED and the means of the parties are material
Who questioned the limitation of EDs to G and in what case?
Lord Wilberforce in Kuddus v Chief Constable of Leicestershire
Wells v Wells general
Index Linked Government Securities
What Report suggested EDs should be available for media torts and libel and slander?
Leveson Report
When is a periodical payment considered ‘reasonably secure’?
When made by G/health service
Why are themes of the parties material in exemplary damages?
To see if it aggravated or mitigated D’s conduct
Why did Lord Scott in Kuddus v Chief Constable of Leicestershire consider the deterrent effect of ED on G ‘fanciful\?
Damages are met by public funds
What section of FAA 1976 gives an exhaustive list of ‘dependants’?
S.1
Why was the LC personal approach to non-pecuniary rejected?
Lower awards may be awarded for more catastrophic injuries
What is the fixed lump sum for bereavement?
£12,980
What is the purpose of investing in an ILGS?
Promised proof of investment against inflation
S.3(3) FAA 1976
eliminated the need to consider the likelihood of dependant remarrying
Prior to LR(MP)A 1934, what was the effect of V’s death?
No claim for damages
Hillsborough, quick and painless
Hicks v South Yorkshire Police
What case showed the SC ruling vindicatory damages do not exist in English law?
R (Lumba) v SoS for the HD
Grobbelaar v News Group Newspapers judgment
£85,000 award reduced to £1, and pay 2/3 of The Sun’s legal costs
What case restricted FAA 1976 claims to pecuniary loss only?
Franklin v South Eastern Railway
R (Lumba) v SoS for the HD
vindicatory damages do not exist in English law
Actuarial tables
Relevant discount rate for vicissitudes of life
Hicks v South Yorkshire Police general
Hillsborough, quick and painless
Who criticised the ‘diminution in value’ approach to non-pecuniary loss?
Law Commission
What case showed no claim for damages past X period because C’s illness meant he wouldn’t have been able to work in the future anyway?
Jobling v Associated Diaries
Non-pecuniary loss definition
Non-financial costs incurred, e.g. loss of amenity/pain and suffering
What did Law Commission suggest of exemplary damages?
Should be available whenever D deliberately disregards C’s rights, but as a ‘last resort’ decided PURELY by a judge
Rookes v Barnard judgment
Per Lord Devlin, three categories for EDs
Simmons v Castle
CoA announced across-the-board increases in damages for non-pecuniary loss
What tables are used by practitioners to find the relevant discount rate for inflation?
Ogden tables
What case allows claims for damages by dependants?
Fatal Accidents Act 1976
Who suggested a normative view of the purpose of compensatory damages?
Varuhas
When are contemptuous damages most common?
In defamation
Who suggested periodical payment reform influences bargaining positions of private litigation?
Lewis
What case is an example of contemptuous damages?
Grobbelaar v News Group Newspapers
What case set limits on exemplary damages?
Thompson v Commissioner of Police for the Metropolis
Neighbours but complainant arrested
Rowlandson v Merseyside
How did the Law Commission suggest aggravated damages should be perceived?
As PURELY compensatory, not punitive
Baker v Bolton
‘The death of a human being could not be complained of as an injury’
Strict rules on PEL
Cattle v Stockton Waterworks
What five factors do the courts consider in multiplier/multiplicand method?
Vicissitudes of life, accelerated receipt, inflation, children and lost years
How is pain and suffering assessed?
Subjectively
Rowlands v Chief Constable of Merseyside Police general
Vicarious liability
Barely sentient and totally dependent
Lim Po-Choo v Camden & Islington
Vicarious liability
Rowlands v Chief Constable of Merseyside Police
What case is the starting point of discussion on exemplary damages?
Rookes v Barnard
What was the predecessor to the FAA 1976?
Lord Campbell’s Act in 1846
What tort claims DO get nominal damages?
Assault and battery
Kuddus v Chief Constable of Leicestershire on cause of action
Per Lord Scott, could be adopted on a reasoned analysis of what torts should and shouldn’t be permitted
What are the two basic categories in damages for personal injury?
Pecuniary and non-pecuniary loss
What is the nature of a claim under FAA 1976?
Derivative
Varuhas on the purpose of compensatory damages
Suggested a normative view, such that they record the fact that an important interest has been invaded
What Act makes ED available whenever D incurs liability for the ‘publication of news-related material’ and shows ‘outrageous disregard’ for C’s rights?
Crime and Courts Act 2013
Pecuniary loss definition
Financial costs D has made C incur
What is s.2(1) DA96 dependent on?
Consideration of appropriateness
What is the classic way of paying out personal injury damages?
Lump sum
Pearson Commission on non-pecuniary loss
Suggested no damages for first three months after injury
Two cases on consideration of children for lump sum
Croke v Wiseman; Cassell v Riverside HA
Why is there usually no claim if dependency was based on state benefits?
Reduction for one less adult usually leads to same level of support so no loss
Lawrence v Fen Tigers Ltd
think about damages as a licence fee, based on D’s gain - D pays for the received benefit
Heil v Rankin judgment
Awards in Ireland for non-pecuniary loss higher, probably because of jury-trials - England should increase 1/3 more than in 2000
Pickett v British Rail Engineering
Multiplier method based on current life expectancy, awarding for lost years but deducting C personal expenditure
Administration of Justice Act amended LR(MP)A 1934 how?
Blocked claim for future lost earnings and abolished claims for ‘loss of expectation of life’
What did the LC advocate instead of ‘diminution in value’?
Personal approach
What is the name given to damages for FUTURE financial and non-pecuniary losses?
General damages
What two qualifications are there on the usual compensatory aim of tort damages?
Loss is not always required, and damages are not confined to compensating the loss actually suffered
What is a criticism of ECHR alongside FAA 1976
Different amount of damages depending on whether death results from tort or Article 2 breach
What section of what Act allows periodical payments for non-pecuniary loss if the parties agree?
S.2(2) DA96
What are three difficulties with a lump sum assessment of damages for future pecuniary loss?
Hard quantum, C may do worse/better than predicted and C may spend the lump sum straight away
Thompson v Commissioner of Police for the Metropolis on aggravated damages
Aggravated damages should rarely be less than £1000 but not more than 2x basic compensatory damages
What tables are used to help analyse vicissitudes of life under multiplicand method?
Actuarial tables
What case confirmed there is no cause of action restriction on EDs?
Kuddus v Chief Constable of Leicestershire
Cassell v Riverside HA
2.5 times national average
What is the accelerated receipt concern in lump sum?
C may spend it all, or invest it and be overcompensated
What are exemplary damages purely aiming to do?
Punish D
What case gave general guidance on EDs against public authorities?
Thompson v Commissioner of Police for the Metropolis
Index Linked Government Securities
Wells v Wells
What Paper suggested damages under FAA 1976 to dependant for gratuitous services by 3rd, but then personal obligation to account to 3rd?
Civil Law Reform Bill Consultation Paper
Rowlandson v Merseyside general
Neighbours but complainant arrested
What doctrine blocked the dependancy claim in Burns v Edman?
Ex turpi causa
why was there not allowed a claim by dependants for damages upon V’s death?
Relational loss, generally related to PEL
What is the issue with lost years and the multiplier method?
D is rewarded the more he reduces C’s life
Why does any defence against deceased also apply to FAA 1976?
Claim is derivative
What are vicissitudes of life?
Something might happen in future to eliminate C’s loss/make it worse
What three categories did Lord Devlin give in Rookes v Barnard for exemplary damages?
Oppressive conduct by agents of G, if D calculated profit or if statute provides for EDs
what was the rough upper-limit of exemplary damages given as in Thompson v Commissioner of Police for the Metropolis?
3x total compensatory and aggravated damages
Who suggested periodical payment reform was ‘politically driven’ in favour of short-term G interests?
Lewis
Damages Act 1996 and lost years issue in multiplier method
Periodical payment order may be better than Pickett v British Rail, providing greater protection for dependants
What section of what Act eliminated the need to consider the likelihood of dependant remarrying?
S.3(3) FAA 1976
What section of the Law Reform (Miscellaneous Provisions) Act 1934 excludes defamation?
S.1(1)
What does Lewis note about the future of periodical payments for NHS and MoD
Prediction that after 24 years, the immediate gains to MoD and NHS will become negative
What case suggested a de minimis requirement for pain and suffering?
Hicks v South Yorkshire Police
What judge in what case called it an ‘intrinsically impossible task’ to put a figure on each non-pecuniary claim?
Lord Hailsham LC in Cassell v Broome
What case suggested it may be better to think about damages as a licence fee, based on D’s gain?
Lawrence v Fen Tigers Ltd
What case suggested a more generous calculation for lost years under FAA 1976 than when by C ?
Thompson v Arnold
What Act implemented Levson Report suggestion?
Crime and Courts Act 2013
What report helps in regard to certainty for non-pecuniary loss awards?
Kemp & Kemp
What judge in what case considered exemplary damages inappropriate but too embedded?
Lord Reid in Cassell v Broome
ECHR conditions for claim on bereavement
Death results from an unlawful act by a public authority which breaches Article 2 ECHR
What case required a separated widow to show a not insubstantial chance she might have returned to claim dependency under FAA 1976?
Davies v Taylor
For s.2(1) DA96 consider if there is CN and if annual sum would cover C’s needs
Rowe v Dolman
Heil v Rankin general
Awards in Ireland
State benefits
Cox v Hockenhul
For multiplier method and lost years, only deduct sums spent by C EXCLUSIVELY on himself
Harris v Empress Motors
What is the method usually used for lump sum assessment?
Multiplicand/multiplier method
What Commission suggested 3 purposes of non-pecuniary loss awards?
Royal Commission
Law Commission on re-partnering and FAA
Still relevant for child dependant claim, so consider if surviving spouse is remarried or engaged to be married
What Act allows V’s estate to claim for damages?
Law Reform (Miscellaneous Provisions) Act 1934
Burns v Edman general
Proceeds of criminal activity
How did the Damages Act 1996 implement Wells?
Directs court to make a discount rate on lump sum as provided by Lord Chancellor to reflect ILGS rate
How is the awareness of lost expectation of life taken into account for damages?
Considered under non-pecuniary loss for damages
What subsection of s.2 DA96 IS dependent on party consent?
S.2(2) DA96
What section of what Act allows for periodical payments in regard to future pecuniary loss of personal injury?
S.2(1) DA96
What Act implemented Wells?
Damages Act 1996
Calculate damages for FAA 1976 based on ‘reasonable expectation of pecuniary benefit’ if C had lived
Franklin v South Eastern Railway
When are aggravated damages most common?
In defamation
What is a stepped order?
Anticipating changes in circumstances to increase or decrease payments
What instrument provides for a wider class in bereavement damages than FAA 1976?
ECHR
Nominal damages
Automatically awarded unless proof of loss required
Damages (Variation of Periodical Payments) Order 2005 allows what?
Courts can make a variable order if chance C’s circumstances will significantly change
Cox v Hockenhull general
State benefits
What is the interest rate for non-pecuniary loss damages pre-trial?
2%
What were the two issues with the common law standing on dependants and damages?
D is better off if he kills V, and death of breadwinner often left family without their main means of support
Harris v Empress Motors
For multiplier method and lost years, only deduct sums spent by C EXCLUSIVELY on himself
What Commission suggested aggravated damages should be seen pure as compensatory, not punitive?
Law Commission
How is loss of amenity assessed?
Objectively
In what case were aggravated damages rejected in negligence, and by what judge?
LJ Woolf in Kralj v McGrath
Croke v Wiseman general
National earning average
Proceeds of criminal activity
Burns v Edman
Owen v Martin
Prospect of divorce considered under FAA 1976
What two categories are there of non-pecuniary loss
Pain and suffering, and loss of amenity
what three considerations apply to s.2(1) DA96?
Amount to be paid, preference of C and preference of D
What Act Directs court to make a discount rate on lump sum as provided by Lord Chancellor to reflect ILGS rate
Damages Act
Wht Commission Suggested no damages for non-pecuniary loss in first three months after injury
Pearson Commission
Which case said courts should disregard replacement services by 3rd which form a benefit to dependant?
R v Criminal Injuries Compensation Board, ex p K
What judge in what case suggested a cause of action test could be adopted for exemplary damages?
Lord Scott in Kuddus v Chief Constable of Leicestershire
When is it preferable for deceased’s estate to claim funeral expenses under s.3(5) FAA 1976?
If dependant’s award is reduced as a result of CN
‘The death of a human being could not be complained of as an injury’
Baker v Bolton
What case shows HC of oz considering re-partnering under vicissitude of life?
De Sales v Ingrilli
Jobling v Associated Diaries judgment
Even if C hadn’t been injured, wouldn’t have been able to work in future anyway
what are the two ways to value FAA 1976 damages?
Multiplier method or periodical payment
What Act blocked claims for ‘loss of expectation of life’?
Administration of Justice Act 1934
Twins, arm up and dead
Kralj v McGrath
lewis on periodical payments
They influence bargaining positions but are ‘politically driven’ in favour of short-term G interests
What is the multiplicand/multiplier method?
Calculation of number of years loss will continue x annual loss C will suffer
When did LC say re-partnering will be considered under FAA 1976?
For child dependant claim if surviving spouse is remarried or engaged to be
S.1 FAA 1976
Exhaustive list of ‘dependants’
Illness AND injury
Jobling v Associated Diaries
Thompson v Commissioner of Police for the Metropolis on EDs
Rarely less than £5,000, and £50,000 is the maximum
Lim Po-Choo v Camden & Islington judgment
Awarded £20,000, confirming West
What case enforced that there is no claim under aggravated damages for feelings already covered under basic damages?
Rowlandson v Merseyside
Hicks v South Yorkshire Police judgment
No award for fear, suggesting de minimis requirement for pain and suffering, and compensation very small if death quick
Morton v Portal
C’s preference is not determinative for s.2(1) DA96
Kuddus v Chief Constable of Leicestershire per Lord Scott on ED payable by G
No longer needed given ‘great developments’ in public law and JR
Jobling v Associated Diaries general
Illness AND injury
Administration of Justice Act 1982 amended what Act
LR(MP)1934
Why did Lord Woolf reject emphasis on certainty in non-pecuniary loss awards?
Courts should constantly review level of damages awarded
What Act preceded the FAA 1976?
Lord Campbell’s Act in 1846
De Sales v Ingrilli
Re-partnering considered under vicissitude of life in HC of Oz
what are contemptuous damages?
Court expressed disapproval of C’s technical legal victory through damages
Kralj v McGrath general
Twins, arm up and dead
What Commission was struck by the high cost of compensation for non-pecuniary loss?
Pearson Commission
2.5 times national average
Cassell v Riverside HA
What case was supportive of specific ‘vindicatory damages’?
Ashley v Chief Constable of Sussex Police
What case recognised the lost years issue with the multiplier method?
Pickett v British Rail Engineering
Aunt and uncle, 3 kids
R v Criminal Injuries Compensation Board, ex p K
Rookes v Barnard general
Starting point for exemplary damages
Royal Commission
Suggested 3 purposes of non-pecuniary loss award
Lord Hailsham LC in Cassell v Broome
‘intrinsically impossible task’ to put a figure on each non-pecuniary claim
What case stated that it is no concern of the court the use of the money awarded for non-pecuniary loss?
West & Son v Shephard
Name three cases considering factors evaluated for FAA 1976 award
Owen v Martin; De Sales v Ingrilli; ex p K
Name at least three reasons why the Law Commission were particularly in favour of periodical payments
Clean break can still be achieved, reflects compensatory element, places risks on D and allows effective cost-management of awards
What are the conditions for a variable order under Damages (Variation of Periodical Payments) Order 2005?
Initial agreement specified to be variable, and change foreseen and specified
