Tort - Negligence (Damages)

Question 1

What is the aim of damages in negligence?

Answer 1

To attempt to put the claimant in the best position, had the wrong not happened

Question 2

What are the two considerations when approaching damages?

Answer 2

1. The kinds of damages sought

2. The basis for awarding damages

Question 3

What are the six kinds of damages?

Answer 3

1. Compensatory damages
2. Nominal damages
3. Aggravated damages
4. Exemplary damages
5. Contemptuous damages
6. Gain-based damages

Question 4

What are compensatory damages?

Answer 4

An award of money which is equivalent to the claimant’s loss (so far as possible)

Question 5

What are the two types of compensatory damages?

Answer 5

Pecuniary and non-pecuniary

Question 6

Three examples of pre-trial pecuniary losses for personal injury

Answer 6

Loss or earnings; medical expenses; care expenses

Question 7

Two areas of uncertainty when estimating damages for future lost earnings

Answer 7

1. What WILL happen to claimant, in light of the injury

2. What WOULD HAVE happened to the claimant, were it not for the injury

Question 8

What are the two (names of the) figures required when estimating future loss of earnings?

Answer 8

Multiplicand and multiplier

Question 9

What is the multiplicand?

Answer 9

The figure representing the claimant’s net annual loss

Question 10

What is the multiplier?

Answer 10

The amount of time the claimant has lost earnings

Question 11

What are the Ogden tables?

Answer 11

Actuarial tables for the multiplier (derived from labour force surveys), and used in estimating expected future working life according to age, gender, profession etc.

Question 12

What are the two elements of non-pecuniary loss?

Answer 12

1. Pain and suffering

2. Loss of amenity

Question 13

Guiding principle of tort damages

Answer 13

Restitutio in integrum

Restoring parties to their original position

Question 14

Normal measure of damages for total destruction of property (and case)

Answer 14

Property’s value at the time and place of destruction

Liesbosch, Dredger (Owners) v SS Edison (Owners) (1933)

Question 15

Normal measure of damages for damage to property

Answer 15

The amount by which the property’s value has been reduced

Question 16

What is the aim of nominal damages?

Answer 16

To reaffirm that there was an infringement of the claimant’s rights

Question 17

Are nominal damages awarded for loss?

Answer 17

No - granted in recognition the claimant has suffered no loss as a result of the tort

Question 18

Can nominal damages be claimed in negligence?

Answer 18

No - because negligence requires there be some damage

Question 19

What are aggravated damages?

Answer 19

Compensation for the claimant for mental torment and hurt feelings, experienced as a result of the malicious, wilful, or insulting way the tort was committed (or treatment of the victim afterwards)

Question 20

What is the purpose of exemplary damages?

Answer 20

Punish the defendant, and deterrence for potential future tortfeasors

Question 21

What is the fundamental requirement for exemplary damages?

Answer 21

That the defendant deserve to be punished (strictly limited to preserve boundary between civil and criminal law)

Question 22

In addition to cases awarding exemplary damages by statute, what are the two situations where exemplary damages may be awarded?

Answer 22

1. Where there is oppressive, arbitrary or unconstitutional acts by government servants
2. Where the defendant calculated he would make a profit over and above compensation payable to claimant

Question 23

What are contemptuous damages?

Answer 23

Damages which are awarded because the claimant’s rights have technically been infringed, but the courts have a very low opinion of the claimant’s behaviour, and award absolutely minimal damages to reflect this

Question 24

What are gain-based damages?

Answer 24

Damages focused on depriving the defendant of the gains they made as a result of their tort

Question 25

What are the two key bases for awarding damages?

Answer 25

1. Awarded on a once and for all basis

2. Awarded in a lump sum

Question 26

What are three exceptions to the ‘once and for all’ rule in damages?

Answer 26

1. Statutory exception (personal injury cases)
2. Where two distinct rights are violated (allowed to bring successive claims for each violated right) Brunsden v Humphrey (1884)
3. Where the injury or harm is continuing

Question 27

Two aspects of the lump sum rule?

Answer 27

1. No damages paid before trial

2. No payment in instalments post trial

Question 28

When are provisional damages awarded? (2 instances)

Answer 28

1. When damages are assessed on the basis that a specified change of condition will not occur
2. On the basis that the specified change of condition does in fact occur

Question 29

Do the courts require the parties’ agreement or consent prior to granting periodical payments? (Plus authority)

Answer 29

No

Damages Act 1996

Question 30

What is the doctrine of mitigation of damage?

Answer 30

The claimant cannot recover damages relating to losses that could have been avoided, had they taken reasonable steps to do so

Question 31

In which two ways can the death of an individual affect liability in tort?

Answer 31

1. It can extinguish liability

2. It can create liability

Question 32

What are the three conditions which must be satisfied to bring a wrongful death claim (and thus seek damages for the dependants of the victim)?

Answer 32

1. The defendant’s tort must be committed to the deceased
2. That tort must have caused the deceased’s death, and must not be too remote
3. Had the victim not died, they would have been entitled to sue the defendant for damages

Question 33

What three types of losses can a dependant of the deceased recover in a wrongful death claim?

Answer 33

1. Loss of support suffered by the defendant (dependency losses)
2. Bereavement damages (if the victim was the spouse or child of the dependant)
3. Funeral expenses (where these were paid by the dependant