WS 5 - Remedies in Tort Flashcards
Aim of damages in tort?
1) Damages are awarded to put C in the position he would have been in had the tort not been committed (restitutio integrum):
a. Lord Scarman in Lim v Camden and Islington AHA [1980] – ‘the principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong’
Two principles of tort damages need to mention
2) One action rule: C may bring only one claim based on one set of facts – one lump sum is awarded to C to cover both past and future losses
3) Mitigation of loss: C has a duty to take reasonable steps to avoid losses – C should not profit from the incident
What do damages for pain and suffering cover?
a. Covers: Past, present and future pain; physical and mental anguish; fear of future surgery etc. Also the anguish of knowing that your life expectancy has been shortened because of the accident (Administration of Justice Act 1982, s.1(1)(b))
What is the test for awarding damages in P&S? What factors should be considered?
b. Wise and Kaye: a SUBJECTIVE test is used to award damages for P&S. Thus, C must be aware of his injuries to claim – C cannot claim for a period where he was unconscious (e.g. coma)
c. Consider factors such as: was the injury to a dominant limb/non-dominant limb? The number of operations required; recovery time; the permanence of any disability; any scarring.
What do damages for loss of amenity cover?
a. Covers: loss of enjoyment of life, e.g. inability to pursue hobbies, loss of sight/smell/freedom of movement/marriage prospects etc.
Test for awarding damages in Loss of Amenity? What factors should be considered?
b. West v Shephard: an OJECTIVE test is used to award damages for LoA. Thus, C may claim for periods where he was unconscious/unaware of his own loss of enjoyment of life
c. Consider: how active was C? If very active, likely to receive more than if not active
What do damages for medical expenses cover? And how are these assessed?
a. Covers all those reasonably incurred resulting from accident (e.g. prescription charges)
b. If pre-trial = special damages
c. If post-trial = general damages: use multiplier method (annual cost of treatment X number of years treatment is likely to continue)
s.2(4) Law Reform (Personal Injuries) Act 1948
one may recover reasonable cost of PRIVATE medical treatment – this is not a failure to mitigate
1) LOSS OF EARNINGS PRE-TRIAL
a. Covers net loss of earnings from date of accident to date of trial (includes bonuses/perks earned)
b. Special damages (i.e. Capable of being calculated precisely at time of trial)
3) LOSS OF EARNINGS POST-TRIAL
a. Lump sum which, when invested, aims to provide C with income for rest of his life.
b. General damages (i.e. not capable of being calculated precisely at time of trial)
c. Worked out using multiplier method:
Multiplier method for valuing damages for loss of future earnings?
Multiplicand x multiplier
Multiplicand (loss of future earnings)
Multiplicand (=net annual loss of earnings)
- Gross annual loss at date of trial
- Adjusted (increased) for bonuses/perks and the likelihood of promotion
- Does not take account of inflation as the claimant can counteract this by investing
Multiplier (actual period of loss from trial)
Multiplier (=actual period of loss from trial)
- Reduced for early receipt (C assumed to invest money at standard rate of return of 2.5%) and for the ‘contingencies of life’ (e.g. possibility of redundancy)
- Takes into account interest claimant could earn on those damages by reducing the number of years for claimant’s remaining life expectancy (arrives at this number of years using OGDEN tables
Case which says you can recover for the lost years
Pickett v British Rail Engineering: C may claim for the lost years, i.e. where C’s life expectancy, and therefore number of years he would have worked, has been shortened
What do we deduct from figure for lost years?
b. But deduct from this figure the amount C would have spent on self (25% if married with dependent children; 33% if not dependents) – We do this as we are calculating for period after claimant is expected to die
Loss of earnings - children
a. Children may also be compensated for loss of earnings
b. Calculation will be based on factors such as: national average salary, parents’ earnings, typical earnings for area of work in which child has shown potential.
a. Schneider v Eisovitch [1960]:
i. C may recover for necessary post-injury care services, provided the need for services from injury caused by D’s negligence
ii. He must show that those costs were reasonable (where a professional carer –usual market rate)
iii. How it works: Carer him/herself doesn’t claim – rather, C claims on behalf of carer and holds on trust (carer has no cause of action against third party)
b. Housecroft v Burnett:
i. A RELATIVE who gives up work to care for C may also be compensated according to their loss of earnings, but this must not exceed the commercial rate for providing those services (s/he may only recover commercial rates)
ii. If carer provides services for free and there is no loss of wages, damages should be pitched somewhere between two extremes: nil and full commercial rate
What is the Smith v Manchester Corporation award?
Loss of earning capacity:
a. Damages are awarded where C is still able to work and continues to work in original job, but is now disadvantaged in the job market/has a reduced ability to earn highly.
b. Award: typically 0-2 years net annual loss of earnings (speculative head of damages)
c. NB – this is relevant where the claimant is CURRENTLY STILL WORKING IN HIS ORIGINAL JOB
What other non-pecuniary expenses can be claimed?
a. Any reasonable loss, such as damage to property or cost of property, household aids (e.g. dishwasher) will be awarded
What deductions are made from awards for non-fatal claims?
a. Tax and national insurance contributions will ALWAYS be deducted
What will not be deducted from damages for non-fatal claims?
b. Insurance payments, charitable/family help and ill-health pension payments are NEVER deducted (this is an exception to the principle of not over-compensating claimants, justified on public policy grounds)
Which types of non-fatal claim damages are STATE BENEFITS to be deducted from?
i. Loss of Earnings
ii. Cost of care
iii. Loss of mobility
iv. BUT NOT FROM P & S OR LOSS OF AMENITY
How are damages reduced for state benefits?
They are deducted from claimant’s damages and then defendant is required to pay the amount back to the state: Social Security (Recovery of Benefits) Act 1997
Exceptions to the one action rule?
a. Provisional damages: s.32A Senior Court Act 1981: in cases personal injury, where there’s a chance C’s condition will deteriorate
b. Periodic payment: s.2 Damages Act 1996 allows court to order periodic payment of damages for personal injury
i. At the trial, the court will assess damages on the basis that Fred will NOT lose the sight in his right eye. The judgement will specifically provide that, in the event that Fred DOES lose his sight in his eye in the future, he will be entitled to further damages.
Law Reform (Miscellaneous Provisions) Act 1934
1) State: Where C has died, C’s ESTATE can continue/commence a claim on his behalf (s.1(1)) (contrary to old common law rule that at death, tortious liabilities and rights were extinguished: action personalis moritur cum persona).
a. EXCEPTION: Following do not survive death:
i. Claims in defamation
ii. Claims in bereavement
How does a claim in Law Reform (Miscellaneous Provisions) Act 1934 work?
2) How it works: PRs bring the claim, on behalf of the estate
What can be recovered under the Law Reform (Miscellaneous Provisions) Act 1934?
a. SURVIVAL PERIOD LOSSES (losses between tort and death)
i. All pecuniary losses up to the date of death (therefore, NOT loss of earnings)
ii. All non-pecuniary losses up to the date of death (both P&S and LoA)
b. Property damage
c. Reasonable funeral expenses incurred by the estate
What does the Fatal Accidents Act 1976 allow for?
1) State: The FAA allows DEPENDENTS to sue for the death of a person on whom they were dependent
2) How it works: PRs bring the claim, on behalf of the DEPENDENTS.
Who qualifies as a dependent under the FAA?
a. To claim, the person:
i. Must fall within the class of dependents listed in s.1(3) FAA
1. NB – very wide, but would not cover a cohabitee of less than 2 years duration
ii. Must have been actually financially dependent on the deceased
What claims can be brought under FAA 1976?
a. Damages for LOSS OF DEPENDENCY. Assessed using multiplier method (see below)
b. BEREAVEMENT allowance: fixed sum £11,800
i. But – only available for deceased’s spouse, or, if deceased was an unmarried minor, for his parents
c. Reasonable funeral expenses incurred by the dependents (s.3(5))
What can be recovered under the Law Reform (Miscellaneous Provisions) Act 1934?
a. SURVIVAL PERIOD LOSSES (losses between tort and death)
i. All pecuniary losses up to the date of death (therefore, NOT loss of earnings)
ii. All non-pecuniary losses up to the date of death (both P&S and LoA)
b. Property damage
c. Reasonable funeral expenses incurred by the estate
What does the Fatal Accidents Act 1976 allow for?
1) State: The FAA allows DEPENDENTS to sue for the death of a person on whom they were dependent
2) How it works: PRs bring the claim, on behalf of the DEPENDENTS.
What claims can be brought under FAA 1976?
a. Damages for LOSS OF DEPENDENCY. Assessed using multiplier method (see below)
b. BEREAVEMENT allowance: fixed sum £11,800
i. But – only available for deceased’s spouse, or, if deceased was an unmarried minor, for his parents
c. Reasonable funeral expenses incurred by the dependents (s.3(5))
What claims can be brought under FAA 1976?
a. Damages for LOSS OF DEPENDENCY. Assessed using multiplier method (see below)
b. BEREAVEMENT allowance: fixed sum £11,800
i. But – only available for deceased’s spouse, or, if deceased was an unmarried minor, for his parents
c. Reasonable funeral expenses incurred by the dependents (s.3(5))
Multiplicand (damages for loss of dependency)
Multiplicand (= salary)
• Figure reduced by (a) the amount deceased would have spent on himself – 25% if married with dependent kids, 33% where no dependents – and (b) any finding of contributory negligence against the deceased
• Figure may be increased to take account of value of household work, perks of job etc
Multiplier (damages for loss of dependency)
Multiplier (= the period of dependency)
• For the deceased’s spouse = retirement age; for the deceased’s children = date at which they leave education
• Inheritance from deceased – cannot be taken into account: s.4
• Remarriage prospects of a widow – cannot be taken into account s.3(3)
Multiplicand (damages for loss of dependency)
Multiplicand (= salary)
• Figure reduced by (a) the amount deceased would have spent on himself – 25% if married with dependent kids, 33% where no dependents – and (b) any finding of contributory negligence against the deceased
• Figure may be increased to take account of value of household work, perks of job etc
Multiplier (damages for loss of dependency)
Multiplier (= the period of dependency)
• For the deceased’s spouse = retirement age; for the deceased’s children = date at which they leave education
• Inheritance from deceased – cannot be taken into account: s.4
• Remarriage prospects of a widow – cannot be taken into account s.3(3)
