🚑Tort: remedies Flashcards
Aim of damages in tort
put the claimant in the same position they would have been in if the tort had not been committed =should be no worse off but no better off
What is the duty to mitigate?
Cant claim for damages they could have avoided by taking reasonable steps so should take all reasonable steps to keep losses to a minimum
What is the one action rule?
Can only bring one claim based on one set of facts
What are general and special damages?
SPECIAL: Losses capable of being calculated precisely at time of trial (pre trial losses)
GENERAL: POST trial losses not capable of being calculated precisely at time of trial
What are the categories of losses
Pecuniary losses (capable of mathematical calculation in money terms)
Non-pecuniary losses (NOT capable of precise financial calculation)
What pecuniary losses can be recovered for PI? (6)
- Loss of earnings pre trial
- Future loss of earnings
- Medical expenses
- Services provided to C
- Loss of earning capacity
- Other reasonable pecuniary expenses
What non pecuniary losses can be recovered for PI? (2)
- Pain and suffering
- Loss of amenity
How are loss of earnings pre trial calculated?
From date of accident to date of the trial
Inc. deductions for tax/NI=take home net NOT gross pay
Inc. work perks, bonuses ect.
Formula for calculating loss of future earnings
1.MULTIPLICAND: gross annual (ADD promotions DON’T ADD inflation LESS tax, NI, pension)
TIMES
2. MULTIPLIER: period of future loss based on pre accident working life expectancy/when can return to work (increased via discount rate of -0.25%)
How does future loss of earnings calculation differ if the Cs life expectancy is shortened by the accident?
◊ Can recover loss of future earnings for lost years (to provide for dependants)
◊ Calculation for period after C expected to die: Generally, Deduction of 25% for married person with kids and 33% for people with no dependents (for the amount they would have spent on themselves)
How is future loss of earnings calculated for children who will never work?
Can use parents earnings/national average/area of employment kid showed interest in
What medical expenses can be recovered?
NOT NHS-sometimes D has to pay for this but it doesn’t go to C
Private if reasonable
What services provided to C can be recovered?
- Must show costs reasonable (in accordance with usual market rate)
- Inc. family loss of earnings for giving care BUT must not exceed the commercial rate
What is loss of earning capacity and when can it be claimed?
- Disadvantage in job market due to disability
- Must be satisfied there is a real risk of C loosing their job
- Relevant where C currently working in their original job NOT if C cant work at all/has been forced into lower paid work
Example of other reasonable pecuniary expenses that can be recovered?
Damaged property and any reasonable loss incurred as a result
How are non pecuniary losses quantified?
Consider individual facts
Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases.
What pain and suffering can be recovered?
Past, present and future pain, physical and mental anguish
Only for period they were aware/conscious
What random things does pain and suffering also include?
- Fear of future surgery
- Anguish of knowing life expectancy shortened
What is loss of amenity and what type of test?
- Compensation for loss of the enjoyment of life
- Objective test
Examples 3 of loss of amenity
- loss of freedom of movement/sight/smell
- marriage prospects
- inability to pursue hobbies
What is not deducted from damages for PI even if they confer an extra benefit on the C?
- insurance payments;
- ill- health pensions;
- charitable payments (inc ex gratia payments made bc Cs employer provided they’re not a tortfeasor)
What state benefits received as a result of the accident are deducted from damages for PI?
□ Only relevant benefits deducted (D has to pay amount back to state)
□ Benefits deducted from compensation for:
1. lost earnings
2. cost of care
3. loss of mobility
What will relevant state benefits not be deducted from?
- pain and suffering
- loss of amenity
What are the types of claim for damages on death?
Claim by the estate (Law Reform (Miscellaneous Provisions) Act 1934)
Claim by the dependents (Fatal Accidents Act 1976)