Remedies in Tort: Negligence Claims

Remedies in Tort

• This chapter explores remedies claimants seek from defendants after establishing liability in tort, particularly negligence.
• A lawyer must assess the availability of evidence for each element of a claim, focusing on the desired remedy for the client

Harm Suffered

• Harms suffered by claimants in negligence cases include property damage, such as a car in an accident, and personal injury, such as a broken leg from a fall.
• A solicitor seeks full compensation for a client in a road accident, claiming costs for car repairs/replacement, alternative car hire, pain/suffering, and lost activities such as playing football.
• Additional claims can include medical expenses and lost wages, forming a non-exhaustive list of potential losses.
• The chapter focuses on damages for living claimants while mentioning awards for deceased individuals

Damages and Liability Regimes

• Chapters 6, 7, and 8 address special liability regimes, such as employer's liability and liability for defective products, noting that remedies are the same as general negligence despite specific liability rules.
• Chapter 10 will address torts involving land interference like trespass and nuisance, noting claims in nuisance can involve damages to compensate interference with land use, requesting injunctions to stop harmful activities.
• This chapter concentrates on damage remedies.

Compensatory v Nominal Damages

• Compensatory damages compensate for suffered losses, while nominal damages are another type of award,
• In torts actionable per se, like trespass, claimants do not need to prove actual damage to establish a claim.
• A store detective detaining a customer without harm is an example.
• Compensatory damages are inappropriate when no actual damage occurred; instead, nominal damages recognize infringed rights, such as bodily integrity, with a token sum of money.
• Pursuing nominal damages can establish legal rights, exemplified by a neighbor trespassing without causing damage.
• A claim rewards costs to vindicate claimant's rights, ensuring no substantial financial loss if the defendant can cover costs.

Compensatory Damages

• The chapter then focuses on compensatory damages for personal injury and death, starting with general principles for all compensatory damage awards.

Measuring Damages in Tort

• A tort aims to place the claimant in their pre-tort position, paying for bicycle repairs or replacement after damage from negligence.
• This principle is easy to apply when losses are quantifiable in monetary terms, thus restoring the claimant's condition with money, such as car repairs and lost earnings.
• For personal injuries, monetary compensation cannot restore the claimant to their previous position, acting as compensation rather than restoration.

Mitigation of Loss

• Damages ensure no betterment from wrongdoing, with claimants avoiding preventable losses by taking reasonable actions, thus fulfilling the duty to mitigate.
• Job loss due to wrongdoing requires seeking alternative employment, while vehicle damage necessitates replacement via purchase or hire.
• Unreasonable refusal of medical treatment limits recoverable damages for avoidable harm.

The One Action Rule

• Claimants can only bring one claim per set of facts, thus requiring a single lump sum for past and future losses at the time of the trial
• Losses can encompass continuing pain, suffering, and lost earnings.
• Judges need to assess future losses at the time of the trial, but claimants cannot return with a second claim if the injury worsens, causing difficulties for all parties.

General v Special Damages

• Special damages are losses precisely calculated at trial and stated as a calculation, covering pre-trial financial losses like lost earnings.
• General damages are losses that cannot be calculated precisely, left to the court's discretion, and covering pain, suffering, loss of amenity, and losses after the trial

Damages for Personal Injury

• The theory behind damages is considered, focusing on the actual damages a successful claimant in negligence might recover for personal injury.
• Damages are divided into pecuniary (monetary) and non-pecuniary (non-monetary) losses when calculated.

Pecuniary v Non-Pecuniary Losses

• Pecuniary losses are mathematically calculable in monetary terms, which may be pre-trial or post-trial losses which include lost earnings and medical expenses.
• Non-pecuniary losses cannot be calculated in money terms, and include personal injury.

Non-Pecuniary Losses

• A solicitor needs to gather information about the client's 'pain and suffering' and 'loss of amenity' for broken leg caused by negligence, including the injury details and medical treatment received.
• Detailed injury details include type of fracture, treatment, pain levels, drugs taken, their effects, ongoing/future effects (supported by medical evidence), impacted activities, previous interests, and other injury effects, which explores how the injury affects enjoyment of life.

Pain and Suffering

• Pain and suffering encompasses past, present, and future pain, physical/mental distress, and fear of surgery.
• Administration of Justice Act 1982, s 1(1)(b) covers anguish due to reduced life expectancy from the accident.
• Courts give a single monetary figure covering both pain/suffering and loss of amenity, by using a subjective test established in Wise v Kaye [1962] 1 QB 638, focusing on the claimant's awareness of injuries to claim for pain and suffering, thus barring compensation for an unconscious claimant.

Loss of Amenity

• Loss of amenity compensates for lost life enjoyment, encompassing many losses (movement, sight, smell, marriage prospects, hobbies).
• Very active claimants receive more than less active claimants who are very active receive more under this area.
• Courts apply an objective test (West v Shephard [1964] AC 326), and claimants recover under this category whether conscious or not.

Quantification of Non-Pecuniary Damages

• Valuing a loss is difficult due to individual age, sex, and hobbies, requiring courts to consider individual facts.
• Agreed settlements are based on likely court awards of damages for a client’s injuries.
• Lawyers consult Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases and texts like Kemp on Damages which contain thousands of cases.
• Lawyers find similar cases to guide damage amounts for non-pecuniary losses, where damages can only be estimated.
• Non-pecuniary damages (pain, suffering, loss of amenity) are general damages because they cannot be calculated precisely.

Pecuniary Losses

• Pecuniary losses are mathematically calculable in money terms, whether pre-trial or post-trial, which include client information on wages, sick pay, work absence (with medical evidence), expenses (treatment, prescriptions, travel, nursing, equipment), and duration to assess damages.

Medical Expenses

• Claimants can recover incurred medical expenses, categorized to special (pre-trial, calculated by addition) or general damages (post-trial, based on annual treatment cost and duration).
• Recoverable expenses include wheelchairs, home adaptations, dietary needs, and hospital travel.
• Medical treatment from the National Health Service is free, but Law Reform (Personal Injuries) Act 1948, s 2(4) protects claimant rights to private treatment at no detriment to mitigate losses.
• Claimants can recover reasonable private treatment costs, but those treated by the NHS cannot recover costs, as damages are intended to compensate for suffered losses.

Loss of Earnings

• Pre-trial loss of earnings are calculated by net earnings for the period, thus categorized as a special damage.
• Earnings ascertain tax and national insurance contributions for accurate compensation, alongside pension contributions deducted at source.
• Overtime, bonuses, perks (company car, reduced mortgage, stock options) are included at time of calculation of damage.
• Post-trial loss of earnings are harder to assess and categorized as general damages because it must make the assessment at the trial date, even to determine capacity to earn in the future.

Establishing Lost Earnings

• Courts assess future losses when claimants cannot work or earn less, common when months/years of recovery are needed.
• Courts award one lump sum based on future loss at trial.
• Considerations include the person's working life, current earnings estimate loss, and potential earnings with other work.
• Formulas calculate future losses which uses, "Multiplicand" annual losses (gross salary, promotion increases, tax deductions etc), and "Multiplier" period of future loss based on pre-accident working life expectancy until normal retirement.

Compensating Damages in Tort

• Compensating damages does not put in a better position than if the accident did not occur.
• Claimants receiving full future earnings at trial would be over-compensated due to investment and interest, which is unavailable with monthly salaries.
• Claimants should not be under-compensated if interest does not offset inflation.
• The Lord Chancellor sets the discount rate that is currently at minus 0.25% under the Damages Act 1996.
• The discount rate mirrors low-risk investments that do not protect against inflation, avoids assuming better-performing, riskier investments.
• Using actuarial tables (Ogden tables) litigation solicitors determine appropriate multiplier based on clients age, interest rate and lump sums.
• The claimant's lump sum increases the multiplier, demonstrated by increase in multiplier x multiplicand.

Contingencies of Life

• Over-compensation is avoided while also taking into account what might have happened to the claimant in their future working life by considering "contingencies of life".
• Courts reduce basic multiplier figures obtained from the client's age, discount rate to account for adverse future "contingencies of life", such as potential job loss.
• Simple examples consider future loss earnings, but can also take into account other matters in practice
• The same methods are used to calculate the loss for that limited period, in order to account for the money which could be earned.

Loss of Earnings - The Lost Years

• Claimants recover damages on the basis of normal retirement age, but their injury may have reduced their remaining life expectancy.
• A client has lost 20 years of earning capacity according to medical evidence, requiring consideration of whether it matters to the client when lost earnings are applicable due to expected death.
• Pickett v British Rail Engineering [1980] AC 136 established that claimants can recover loss of future earnings for lost years if life expectancy is shortened.
• The person working normally would spend their earnings on themselves (food, clothing), with only the balance supporting their family, but calculating for the period after is expected to die is considered overcompensation.
• Multiplicands are reduced by the amount the claimant would have spent on themselves where that deduction is set at 25% for a married person with dependent children, and 33% for those with no dependants.
• Only relevant to make where the claimant dies during the period damages are calculated.

Loss of Earnings - Children

• Courts may award a sum for future loss of earnings if a child is injured and unable to work.
• It is difficult for the courts to assess the correct level of the child's future earnings or to predict that child's earnings.
• Future losses include considering similar levels to parents or taking the national average based on child achievements and potential for certain jobs.

Services Provided to the Claimant

• The injured clients will be able to recover services that they need, such as housework/shopping/gardening/laundry and nursing care.
• The ability to recover the cost of services is based on Schneider v Eisovitch [1960] 2 QB 430, requiring services that are able to show the need for the services follows from the injury caused by the defendant's negligence.
• The third party providing the services cannot claim the value, since they did not have the duty of care, but the claimant recovers costs based on their need for care caused by the defendant.
• Carers for services can be professional or relative, enabling relatives to give up work and still allow the claimant to recover damages.
• Recoverable damages include the cost that was paid for professional nursing care if they show that the costs were reasonable and/or market value.
• If a claimant's spouse gave care, the claimant may recover the cost of the care assessed by the Housecroft v Burnett [1986] 1 All ER 332, which noted that starting point was the loss of earnings suffered by the carer.
• Costs cannot exceed the commercial rate for providing the services.

Loss of Earning Capacity

• Awards may be made to compensate disadvantages, though it is speculative and the judge must be satisfied of the real risk.
• Claimants are due awards if they are injured and have continued earning from disability
• Smith v Manchester Corporation awards are also known but note that they must be relevant when the claimant still has their original job, not if they cannot move to lower paid work.

Other Pecuniary Expenses and Exceptions

• Recoverable pecuniary expenses include clothing, jewellery, watches, spectacles, bags, and shoes that are damage
• Further issues for examination include what extra financial support persons may receive, for example, insurance, support, etc to determine how damages will be calculated and to be sure that the claimant is not better off as a result of the accident.
• Payments are not deducted insurance payments, ill-health pensions and charitable payments if the employer was not the tortfeasor to encourage from protection.
• If the claimant receives State benefits from an accident, some acount must taken and deducted relevant benefits from the claimant's damages, which the defendant then pays to the State through Social Security (Recovery of Benefits) Act 1997.

State Benefits and Provisional Damages

• State benefits are deducted from the damage suffered which is compensation for lost earnings, cost of care and loss of mobility.
• Not deducted is pain and suffering or loss of amenity, which practitioners need to study through provisions of the Act and associated regulations.
• Provisional damages and awards are from single lump-sums depending on circumstances, that is awarded at the date of trial, and cover past, present and future issues.
• May cause problems if a claimant is under-compensated if a defendant is ordered to pay compensation to protect claimants if their condition deteriorates.
• Provision is determined under two statutory rules:
  • Section 32A of the Senior Courts Act 1981 allows for an award of provisional damages.
  • Section 2 of the Damages Act 1996 allows that damages are from periodic payments opposed to a lump sum in certain circumstances.

Example of Damages and Deterioration

• Potential problems and outcomes of deterioration can lead to serious and provisional damage awards where people will be offered damages in the future on the basis of the state without compensation.

Damages on Death

• Claims address compensation if the claimant passes or if defendant's negligence causes the claimant's death. Understand claims following death.
• Key terms include "Estate" (property, money, cars), "Will" (distribution wishes), "Intestate" (no will), "Executors" (will administrators), "Administrators" (intestacy administrators), "Personal representatives" (executors/administrators), "Beneficiaries" (will/intestacy inheritors), and "Dependants" (financial reliance).

Law Reform (Miscellaneous Provisions) Act 1934

• Focuses on situations where the claimant dies before compensation, whether from defendant negligence (fatal road accident) or unrelated causes (illness).
• Claims are the same in both cases under the Law Reform (Miscellaneous Provisions) Act 1934 (1934 Act)
• The Act allows causes of action to continue other than the claims for defamation and bereavement see (5.4.2)).
• Claims against the defendant survives against their estate.
• The 1934 Act does not account any money received, such as life insurance or pension, will reduce the damages claimed by the estate.
• Reasonable funeral expenses can be claimed, provided if they are paid for by the estate.

Deceased Claims

• Deceased claims cover non-pecuniary losses (pain, suffering, loss of amenity, that ends at death), and pecuniary losses (property damage, expenses, income loss up to death).
• Law for death causes from tort states that loss of income ends, because dependent realtives are compensated by the Fatal Accidents Act 1976 at 5.4.2.
• Claims are brought by the estate and are part of it.
• 1934 act affect court proceedings, if claimants die before proceedings can commence, their representatives begin claims, by commencing or dying during the proceedings (representatives can continue claim).
• The claimant may of received damages settlement, which makes 1934 act irrelevant.
• If claimant's death was from negligence a claimant has reduced life expectancy recovers damages for the lost years; damages support dependants.

The Fatal Accidents Act 1976

• Compensation under the 1934 Act will not put these people in the same position if the accident had happened.
• Act will allow all dependants to due to death, commonly commenced be personal representatives.
• Fatal accidents by deceased require claimants to bring a cause of action against dependents and defendants if they survive and must commit a tort against the deceased.
• Actions can cause defenses to original cause by having their own damages be reduced.

Act claims, dependency and bereavement

• 1976 claims also require "parasitic" upon original claims, or no claim at all under the act or there is no cause of action
• Possible claims include claims of dependants during loss; claims of damages for people, and claims of funeral costs paid by dependents.
• Dependencies requires that people must fall into people listed such as spouses, siblings, civil partners and must show benefits from future benefit,
• Pecuniary benefits does not imply simply provision of money, but for cost replacement, childcare, gardening, and housework.
• Awarded damages compensate benefits from descendants, meaning the court sees future payments which decedents would receive, using the Multiplicand and Multiplier

Multiplicand & Multiplier calculation

• Calculation if on the deceased net income and takes into account how they would spend it and living expenses and leaves it for dependence claims, married people with 25% with children, 33% without
• deceased help wealthy families from multiple contributions, if so they may contribute that to the calculations reduced mortgages, vacationers or those services that household can be provided.
• Case requires the time from the dependence to continue if dependents will die until there is no work or if a partner continues for this full event or until all ceases to happen.
• Short term claims apply when the multiplier if in a child event claims go up.

Dependents & Additional damages

• Damages is for all members at the time which can be transferred back down once the basic payments come in play as stated that dependents may have if that family.
• Dependents need to make the support to all members like they are already support all such members before anything can be changed from there stance.
• The wife + the net-worth + value and any services less what they need for themselves while the grandmother is what for bills ect.
• Claims for any damages for the death have other problems where a couple of children will want to create a stance.

Bereavement and Expenses

• Two factors are not taken into account value a clients stance:
  • Damages for dependents does not make plans if more people have had relationship
  • That dependents want to get money from the stance
  • Limited claims for bereaved parties:
  • The wife, husband, or civil partner
  • Parents with children not unmarried
• Coebiting partners in decedents is a fixed stance for all the spouse to make it easier

Summary

• The person should to have the effect and have the damages the people that could have happened .
• What damages did that had that effect what's the relationship with the person in question, What did they damage?
• All people can then go on to pay other damages.
• Some steps you want to look at includes some things you can put out there:
  • Duty of care
  • Breach
  • How much for the actual Damages the people can be awarded depending on situations.
• What were any effects taken under account.