Tortious Damages Flashcards
What are nominal damages
Where in law the claimant has successfully made out a tort, but no real damage or loss was suffered (eg where the tort was actionable per se, like tresspass). The damages awarded will be a token/symbolic. The defendant will normally also have to pay the court costs
The test of remoteness in Wagon Mound
Reasonably forseeable consequences
Which case says that insurance payments are NOT deductible from damages
Bradburn v GWR (the tortfeasor should not benefit)
What two categories are awardable damages split into
SPECIAL (quantifiable - eg medical expenses prior to trial, property damage, lost wages) and GENERAL (unquantifiable - pecuniary: loss of future earnings etc and non-pecuniary: loss of amenity, pain and suffering
Which case says that the equivalent cost of gratuitous care by family is recoverable, so long as the carer is not also the tortfeasor?
Hunt v Severs (the plaintiff holds the money on trust for the carer)
What are the categories of tortious damages
Contemptuous; Nominal; Aggravated; Exemplary/punitive; Restitutionary (which doesn’t exist in Britain)
What are aggravated damages
Additional damages imposed on the defendant where their behaviour caused distress etc to the plaintiff
Case that says that wages paid during sick leave are deductible from damages
Hussein v New Taplow paper Mills
Which case says that pension payments are NOT deductible from damages
Parry v Cleaver
Which case says that the assumed rate of interest when calculating damages for future loss is that of an idex-linked government saving scheme
Wells v Wells
Which case tells us tells us which elements of non-pecuniary general damages are objective / subjective
West v Shepherd: Loss of amenity is OBJECTIVE and pain and suffering is SUBJECTIVE (Coma patient got highest range of damages for loss of amenity, but nothing for pain and suffering)
A negligent misstatement case where damages were paid for loss of CAPITAL (the money the plaintiff lost due to the misstatement), not PROFIT (the money the plaintiff would have made had the statement been true - a contractual measure of damages)
Esso v Marden
Remoteness test for loss of chance is the balance of probabilities (over 50% chance)
Allied Maples
What is the aim of tortious damages
To give full and fair compensation for all loss suffered as a result of the tort. To restore the claimant to the position they were in before the tort. Tortious damages look back (contractual damages look forward)
Are social security benefits deductible from damages
yes!
A fraudulent statement case where loss of profit was awarded BUT measure was loss of profit for a generic business of that type, not loss of predicted profit for that specific business
East v Maurer. Had the contract been breached, the measure would have been loss of profit for the business in question. Because the tort was fraudulent, the re Polemis measure (all natural direct consequences of the fraud) was applied, rather than the usual Wagon Mound measure.
In the multiplier method of damages calculations what is the multiplicand and what is the multiplier
Multiplicand: The annual loss (after tax). Multiplier: the number of years left before retirement, adjusted down to reflect the vicissitudes of life and the fact that the lump sum will allow for investment opportunities
Forseeability of the risk of physical injury is sufficient to make out forseeability of nervous shock
Corr v IBC
Authority that the D need only forsee the KIND of damage, not the EXTENT
Hughes v Lord Advocate
What are exemplary damages and when are they awarded
Damages to punish the tortfeasors bad behaviour. Rookes v Barnard: punitive damages available for 1. Arbitrary/oppressive action by agents of the state (eg Entick v Carrington); 2. Defendants conduct was calculated to make a profit; 3. where provided for in statute
What are contemptuous damages
Where the plaintiff has successfully made out a case, but despite being legally in the right, their behaviour was so bad that it is felt they don’t deserve extensive damages. A way of showing the courts disapproval. Eg see Grobelaar v Sun, damages for libel reduced to £1 because Grobelaar had taken money to fix matches
Which case says that the plaintiff’s wages in heaven are payable
Pickett v British Rail Engineering
Which case says that charitable payments are NOT deductible from damages
McCamley v Cammel Laird (sp?)
When might the multiplier method not be used to calculate future loss of earnings
When the plaintiff is a child and their possible future earnings are too uncertain: Clarke v Devon CC
Case that stated that the aim of tortious damages is to give full and fair compensation for all loss
Livingstone v Raywards Coal
What are restitutionary damages and which case says they are unavailable in English law
Where the defendant made a profit, but there was no loss to the plaintiff. Restitutionary damages would take the profit from the tortfeasor and award it to the plaintiff. Devenish Nutrition ruled that this measure was not available.
Smith v Manchester award
Where the P is still earning at time of trial, but likely at some point to suffer lack of earnings as a result of handicap - lump sum award OR multiplier
Where are the guidelines for lump sums for PI found
The ogden tables
