Tortious Damages

Question 1

What are nominal damages

Answer 1

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

Question 2

The test of remoteness in Wagon Mound

Answer 2

Reasonably forseeable consequences

Question 3

Which case says that insurance payments are NOT deductible from damages

Answer 3

Bradburn v GWR (the tortfeasor should not benefit)

Question 4

What two categories are awardable damages split into

Answer 4

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

Question 5

Which case says that the equivalent cost of gratuitous care by family is recoverable, so long as the carer is not also the tortfeasor?

Answer 5

Hunt v Severs (the plaintiff holds the money on trust for the carer)

Question 6

What are the categories of tortious damages

Answer 6

Contemptuous; Nominal; Aggravated; Exemplary/punitive; Restitutionary (which doesn’t exist in Britain)

Question 7

What are aggravated damages

Answer 7

Additional damages imposed on the defendant where their behaviour caused distress etc to the plaintiff

Question 8

Case that says that wages paid during sick leave are deductible from damages

Answer 8

Hussein v New Taplow paper Mills

Question 9

Which case says that pension payments are NOT deductible from damages

Answer 9

Parry v Cleaver

Question 10

Which case says that the assumed rate of interest when calculating damages for future loss is that of an idex-linked government saving scheme

Answer 10

Wells v Wells

Question 11

Which case tells us tells us which elements of non-pecuniary general damages are objective / subjective

Answer 11

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)

Question 12

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)

Answer 12

Esso v Marden

Question 13

Remoteness test for loss of chance is the balance of probabilities (over 50% chance)

Answer 13

Allied Maples

Question 14

What is the aim of tortious damages

Answer 14

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)

Question 15

Are social security benefits deductible from damages

Answer 15

yes!

Question 16

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

Answer 16

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.

Question 17

In the multiplier method of damages calculations what is the multiplicand and what is the multiplier

Answer 17

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

Question 18

Forseeability of the risk of physical injury is sufficient to make out forseeability of nervous shock

Answer 18

Corr v IBC

Question 19

Authority that the D need only forsee the KIND of damage, not the EXTENT

Answer 19

Hughes v Lord Advocate

Question 20

What are exemplary damages and when are they awarded

Answer 20

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

Question 21

What are contemptuous damages

Answer 21

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

Question 22

Which case says that the plaintiff’s wages in heaven are payable

Answer 22

Pickett v British Rail Engineering

Question 23

Which case says that charitable payments are NOT deductible from damages

Answer 23

McCamley v Cammel Laird (sp?)

Question 24

When might the multiplier method not be used to calculate future loss of earnings

Answer 24

When the plaintiff is a child and their possible future earnings are too uncertain: Clarke v Devon CC

Question 25

Case that stated that the aim of tortious damages is to give full and fair compensation for all loss

Answer 25

Livingstone v Raywards Coal

Question 26

What are restitutionary damages and which case says they are unavailable in English law

Answer 26

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.

Question 27

Smith v Manchester award

Answer 27

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

Question 28

Where are the guidelines for lump sums for PI found

Answer 28

The ogden tables