Unit 4: Remedies

Question 1

Compensation for torts that are actionable per se

Answer 1

The wrong to the claimant may be recognised by an award of nominal damages, a token amount of money.

Question 2

General principles of compensatory damages

Answer 2

• Measure of damages
• Mitigation of loss
• The One Action Rule
• General and special damages

Question 3

The one action rule

Answer 3

A claimant can bring only one claim based on one set of facts, meaning that the court will award a single lump sum to cover both losses already suffered up to the time of trail and losses which the claimant is expected to suffer in the future. (A continuing tort is different.)

Question 4

Special damages

Answer 4

Those losses which are capable of being calculated precisely at the time of trial and which are stated in the form of a calculation.

Question 5

General damages

Answer 5

Those losses which are not capable of being calculated precisely and are therefore left to the court to determine. Includes pain, suffering and loss of amenity and all losses incurred after the trial.

Question 6

Pecuniary losses

Answer 6

Those which are capable of mathematical calculation in money terms.

Question 7

Non-pecuniary losses

Answer 7

Those which are not capable of being calculated in money terms, eg pain and suffering.

Question 8

Pain and suffering (damages for personal injury)

Answer 8

Covers past, present, future pain. Also anguish of knowing your life expectancy has been cut short - Administration of Justice Act 1982. In the case of Wise v Kaye [1962], there is a subjective test for awarding a sum - being aware of the injuries, so an unconscious (eg coma) claimant would not be able to claim.

Question 9

Loss of amenity (damages for personal injury)

Answer 9

Eg loss of freedom of movement, sight, smell. There is an objective test under West v Shephard [1964], able to claim conscious or not.

Question 10

Medical expenses

Answer 10

If incurred pre-trial they will be special damages, if to be incurred post-trial they will be general damages. Can claim for any reasonable medical expenses. Can recover reasonable cost of private medical treatment under Law Reform (Personal Injuries) Act 1948.

Question 11

Loss of earnings post-trial

Answer 11

The net annual loss is known as the ‘multiplicand’. Then the period of time that the claimant will lose this money is called the ‘multiplier’. Want to avoid over-compensating.

Question 12

Loss of earnings for lost years

Answer 12

When life expectancy and therefore working time is cut short. Can claim this as in Pickett v British Rail Engineering [1980]. There is a deduction for what the claimant would have spent on themselves, so 25% for a person married with dependant children and 33% for those with no dependants.

Question 13

Claiming services post injury

Answer 13

Eg housework, nursing care. Can be recovered as in Schneider v Eisovitch [1960]. Housecroft v Burnett [1986] for when a spouse or relative does the caring.

Question 14

Loss of earning capacity

Answer 14

Smith v Manchester Corporation - an award to compensate for the disadvantage from disability on the job market.

Question 15

Exceptions from deductions from damages

Answer 15

• insurance payments
• ill-health pensions
• charitable payments
  So as to not discourage people from getting insurances or making charitable payments.

Question 16

State benefits

Answer 16

For these: compensation for lost earnings, compensation for cost of care, compensation for loss of mobility. If received, deduct from the claimant’s damages and require the defendant to pay that amount back to the State under Social Security (Recovery of Benefits) Act 1977.

Question 17

If a claimant dies before receiving an award of compensation

Answer 17

All causes of action survive the death of either the claimant or the defendant, except in defamation and bereavement damages. Under the Law Reform (Miscellaneous Provisions) Act 1934. Cannot make further claims if the claim has been settled.

Question 18

Fatal Accidents Act 1976

Answer 18

Damages recovered when negligence causes the death, three possible claims:
- a claim on behalf of dependants for loss of dependancy
- a claim for damages for bereavement
- a claim for funeral expenses.

Question 19

Loss of dependancy - FAA

Answer 19

To claim as a dependant:
- they must fall within the class of dependants as listed in the Act; and
- they must have been actually financially dependent on the deceased.
Does not cover a cohabitee of less than two years’ duration.

Question 20

Damages for bereavement - FAA

Answer 20

Can only be claimed by:
- the wife, husband or civil partner of the deceased;
- the parents (or mother if illegitimate) of a minor who was never married or a civil partner.
Currently set at £15,120, a fixed sum.