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 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?
Claim for pain and suffering and 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)
Why may a claim be bought by the estate on death?
All existing causes of action (except defamation/bereavement) survive death of C or D-for benefit of/against their estate
(ie. can claim *if C dies before they’ve received compensation)
What may a claim by the estate on death cover?
- Non- pecuniary losses
Pain and suffering and loss of amenity (ending at the date of death) - Pecuniary losses:
Property damage
Medical and other expenses
Loss of income up to the date of death.
Reasonable Funeral expenses if paid out of estate
Claim by the estate on death: what is not deducted from damages?
Money received as a result of death Eg. Insurance/lump sum from pension
Claim by the estate on death: what happens to damages?
become part of estate
What must be shown to bring a claim by the dependents?
Had the deceased survived, the deceased would have been able to bring a claim against the defendant themselves.
Who normally brings a claim for the dependents?
usually commenced by PRs
What are the types of claim under the Fatal Accidents Act 1976
- Loss of dependency
- Bereavement
- Funeral expense if paid by the dependants
Fatal Accidents Act 1976: who can claim for loss of dependency?
- Person must be a dependent:
Current/Former spouse/Civ P
Cohabitees lived for 2y
Parents
Children
Siblings - Must have been actually financially dependent on the deceased
How can someone show they were actually financially dependent on the deceased?
Must show they had a reasonable expectation of pecuniary benefit from the deceased (money and services ie. Childcare/DIY/housework)
What does a claim for loss of dependency cover?
Loss of pecuniary benefits from the deceased
How are damages for loss of dependency calculated?
- MULTIPLICAND: deceaseds net annual earnings
LESS 25% if married with kids OR 33% if married without kids
ADD Perks of job ADD Services provided to household which now have to be paid for
TIMES - MULTIPLIER period of loss to the dependant, adjusted as per the Ogdan tables
When calculating loss of dependency, when MAY the period of loss cease for a child?
when turn 18/cease full time education
For a claim for loss of dependency, what do damages for a dependent spouse NOT take into account?
- remarriage or prospects of remarriage
- the fact that dependants are likely to inherit money from the deceased (under a will or on intestacy).
Fatal Accidents Act 1976: Who can claim for Bereavement?
Spouse/CivP
Parents of unmarried minor
Cohabiting partner who lived in same household for 2y immediately before death as spouse
How much are damages for bereavement?
£15,120 (Fixed sum and can only be awarded once)
Damages on death: can the estate claim for loss of future earnings?
No, may be included in damages for loss of dependency
