Tort - Personal injury and death damages (7) Flashcards
What are personal injury damages?
Personal Injury Damages: These are compensatory damages, awarded to compensate a claimant personally injured by the defendant’s harm. Damages are divided between ‘pecuniary’ and ‘non-pecuniary’ losses.
How are non-pecuniary losses calculated for personal injury damages?
Non-Pecuniary Losses: Losses incapable of precise mathematical calculation in monetary terms.
(1) Pain and Suffering: Damages may be recovered for past, present and future pain and suffering.
Scope: This covers both mental and physical pain and suffering.
Mental Suffering: This may include mental suffering, such as fear of surgery. Potentially not mere stress/shaken up state?
Shortened Life: This may include any anguish in respect of a reduced life expectancy as a result of the harm (s1(1)(b) Administration of Justice Act 1982).
Requirement: Damages may only be recovered for pain and suffering the claimant is/was aware of - they cannot claim for a period of comatose (Wise and Kaye).
(2) Loss of Amenity: Damages may be recovered for loss of enjoyment of life.
Scope: This may include future inability to participate in favourite hobbies, restrictions on movement, loss of senses, reduction in romantic prospects etc.
Requirement: Damages may be recovered for periods of comatose, so long as they reflect the claimant’s pre-injury lifestyle (West v Shephard).
(3) Quantum: Solicitors will estimate damages based on case law, using texts such as Kemp and Kemp on Damages.
How are pecuniary losses calculated for personal injury damages?
Pecuniary Losses: Losses capable of precise mathematical calculation in monetary terms.
(1) Medical Expenses: Damages may be recovered for medical expenses, including transport, medication, property renovations, dietary changes etc.
Pre-Trial: Easily calculable - special damages.
Post-Trial: Difficult to calculate - general damages.
Private Medical Treatment: This is recoverable, so long as the costs are reasonable (s2(4) Law Reform (Personal Injuries) Act 1948).
(2) Property Damage: Damages to property incurred during the harm may be recovered.
(3) Lost Earnings: Earnings lost between the harm and the trial may be recovered.
Scope: Net earnings (after tax), including expected overtime, bonuses, and company perks.
(4) Future Lost Earnings: Difficult to predict future earnings, wherein claimant cannot work in the same job as before.
Calculation: The court subjects the ‘multiplicand’ to the ‘multiplier’.
Multiplicand: Expected annual future gross earnings, accounting for reasonably expected promotions. From this, the court subtracts tax, NI contributions, pension contributions. The net earnings figure is the ‘multiplicand’.
Inflation: Inflation is not accounted for, as the claimants will earn interest on the sum awarded over time.
Future Work: If the claimant works in a lower-paid job following the injury, then these earnings will be subtracted from their future expected earnings, and they will be awarded the difference.
Multiplier: This is the expected timeframe of loss - the time from trial to expected date of retirement or return to work.
Discount Rate: As claimants are treated as risk averse investors, the courts apply a ‘discount rate’. This is done using an Ogden table, applied to the multiplier, and currently stands at -0.25%. It raises the damages slightly.
Children: Children can claim for future lost earnings, but this is difficult to predict.
In Practice: Case law differs, but courts have based potential earnings on parental salaries, national averages, and upon averages in professions in which the child has shown interest and aptitude.
Ill-Health Benefits: Do not deduct any ill-health benefits provided by the company because of the injury.
(5) Loss of Earning Capacity: Where a claimant continues to work, but risks adversity in the job market were they are unemployed, they may pursue damages for loss of earning capacity (Smith v Manchester).
(6) Cost of Services: A claimant may pursue damages for the cost of services they require following their harm.
Domestic Services: Damages may be sought for domestic tasks, such as laundry or shopping (Schneider v Eisovitch). The need must arise from the injury.
Services by a Relative: Where a relative provides these services, damages may still be claimed - this should generally be calculated at their loss of other revenue, and cannot exceed the rate of the service if purchased commercially (Housecroft v Burnett).
In Practice: This must make up the original claim by the claimant - a service provider or relative has no cause of action, and the claimant cannot bring a second claim for the same injury.
(7) Loss of Working Years: A claimant may pursue damages for earnings expected in ‘lost years’, if their life expectancy is lowered below that of their expected age of retirement (Pickett v British Rail).
Claimant with Dependents: Damages reduced by 25% (to account for expected personal expenditure of claimant - contestable).
Claimant Without Dependents: Damages reduced by 33% (as above).
(8) Other Expenses: Pecuniary loss attached to other damages, such as destruction of clothing, is recoverable.
What will be deducted from PI damages?
Deductions: Though NI and tax will be deducted from ‘earnings’ damages, certain sums will not be.
Insurance: Regular insurance payments will not be deducted.
Charitable Donations: Money regularly given to charity will not be deducted.
Family Donations: Money given to family will not be deducted.
State Benefits: Pecuniary damages may be reduced, if state benefits are provided in respect of the claimant’s harm (British Commission v Gourley).
How are PI damages paid out?
Lump Sum Payment: Generally, personal injury damages are awarded in a single lump sum. This is subject to two exceptions.
Risk Based Damages: Damages may be awarded on ‘risk’. For example, if the claimant has a 10% chance of losing his eye, and damages for a loss of eye are £30,000, he will receive £3,000. However, if he later loses this eye, he is awarded the full sum (s32(a) SCA 1981).
Periodic Payments: Courts have discretion to award damages in instalments, rather than a single lump sum (s2 Damages Act 1996).
Do damages change if the claimant dies before compensation?
Death Following Compensation: If a claimant dies following their compensation claim, no further claim may be brought. The claim for personal injury should sufficiently have accounted for this.
Do damages change if the claimant dies following the start of proceedings?
Death Following Start of Proceedings: Claims will survive a claimant or defendant who dies following issuing of proceedings, but before compensation is awarded (s1(1) Law Reform (Misc. Provisions) Act 1934).
Exception: Claims for defamation and bereavement damages do not survive a claimant or defendant.
(1) Non-Pecuniary Damages: The estate can claim for pain, suffering, and loss of amenity from the accident up to the date of death.
(2) Pecuniary Damages: The estate can claim for property damage, medical expenses, other damages, and loss of earnings from the accident up to the date of death.
Future Earnings: The estate cannot claim for loss of future earnings.
(3) Funeral: The estate can claim for the cost of the funeral, if funded out of the estate.
Distribution: Damages are distributed through the estate to the deceased’s beneficiaries.
In Practice: These claims can be brought or continued by a personal representative of the deceased.
Do damages change if the claimant dies preceding the start of proceedings?
Death Preceding Start of Proceedings: Provided a claimant has not completed a claim for loss before their death (or was not continued by PRs), dependents may claim dependency damages, bereavement damages, and funeral expenses (Fatal Accidents Act 1976).
(1) Claimant: The dependents are the claimants, but the claim is processed as if the deceased had brought the claim, meaning factors such as contributory negligence apply (s1(1) FAA).
(2) Dependents: Dependants must be: a) Former/Current Spouse or Civil Partner; b) Parents or Guardians; c) Children or Step-Children; c) aunts, uncles and siblings; d) people treated as parents; and e) Cohabitees of at least two years immediately prior to death.
(3) Dependency Damages: Dependents may claim for pecuniary losses equivalent to their dependency on the deceased (including the value of services provided to them) (s1(3)).
Burden of Proof: Dependents must prove that they had a reasonable expectation of pecuniary benefit from the deceased, which damages ought to compensate.
Calculation: Damages are calculated by applying the multiplicand to the multiplier.
Multiplicand: Net annual expected earnings and other perks, such as bonuses, with the ‘tariff’ (to account for personal expenditure).
Tariff: 25% reduction (married with dependent children), 33% reduction (married without dependent children).
Multiplier: The period of expected years of dependency (until retirement for spouses, until adulthood or end of full time education for children). Applied to the Ogden Discount Rate (-0.25%).
Deductions: There are relatively few deductions.
Life Insurance: Life insurance payouts are disregarded - dependents may receive both.
Inheritance: Inheritance money is disregarded (s4).
Prospects of Remarriage: Prospects of remarriage are disregarded (s3(3)).
(4) Bereavement Damages: Dependents may be able to claim bereavement damages (s1(a) FAA). This is fixed at £15,120.
Legal Partner: Legal partners may claim for this.
Parents: Parents may claim for this, provided the child was never married. The sum is split equally.
Illegitimate Children: If the child was ‘illegitimate’, only the mother can claim.
(5) Funeral Damages: If a funeral was funded by the dependents, they may claim the money back if reasonable (s3(5) FAA).
