Tort Law: Compensatory Damages

• The main remedy in tort law involves damages, with the goal of restoring the claimant to their original position before the tort occurred (restitutio in integrum).
• Most damages that are awarded serve as compensatory damages.

Compensatory Damages

• These include general and special damages.

• Special damages are identifiable financial losses that can be precisely calculated, such as loss of earnings, property damage repair costs, or medical expenses.

• General damages are non-identifiable financial losses, quantified by the court, typically for non-monetary losses like pain, suffering, and loss of amenity.

• Traditionally, all losses post-dating a trial are categorized as general damages due to future uncertainties

• The distinction between general and special damages are viewed in terms of pecuniary versus non-pecuniary losses.

• Actuarial tables, like the Government Actuary's Department's Actuarial Tables, help estimate lost earning capacity for long-term or permanent injuries.

• The Judicial College's Guidelines for the Assessment of General Damages in Personal Injury Cases offer damage award indications for various injuries, alongside expert evidence on injury severity.

• Damages for pain, suffering, and loss of amenity are calculated using guidelines and expert evidence.

• More severe the injury leads to larger damage awards.

• Minor brain injuries may attract damages of a few thousand pounds, while foot amputation could be closer to £100,000.

• Judicial College guidelines specify figure ranges for injuries and then separately specify these ranges with a 10% uplift applied.

• The 10% uplift figures compensate claimants for recent changes to personal injury claim funding.

• Claims can be made on behalf of a deceased's estate if death occurs, provided the deceased could have brought the claim themselves, a tort was committed without a defence, and limitation periods are considered.

• Under the Fatal Accidents Act 1976, a deceased's relatives or dependants can claim bereavement damages and/or financial losses due to the victim's death, proving the defendant committed a tort.

Mitigation

• Claimants must minimize their claim amount.
• Those claiming loss of earnings are expected to seek suitable employment if able.

Nominal Damages

• Awarded when a legal wrong is committed, but the claimant suffered minimal harm.

Contemptuous Damages

• Awarded when the court believes the action should not have been brought, resulting in the claimant recovering less and potentially facing costs.

Aggravated Damages

• Higher than compensatory damages.
• Paid when the defendant's behavior worsened the claimant's suffering.

Exemplary Damages

• Higher than usual.
• A sum of money to punish a particular defendant for their conduct.

Illegality Defence

• Ex turpi causa non oritur actio means no action arises from a dishonorable basis, barring actions founded on illegal or immoral conduct.
• Establishing illegality provides a complete defence, regardless of the claimant's mental state when committing the offence.
• Public policy heavily influences the application of the illegality defence.
• Courts consider the criminal venture's seriousness and its causal connection to the claimant's damage.
• Escaping lawful custody is ex turpi, but a car crash due to negligent driving while transporting drugs likely will not be considered as such.

Employee or Independent Contractor

• Tests like the control test, integration test, and economic reality test determine whether someone works under a service contract (employee) or for services (independent contractor).
• The “worker" category complicates defining employment relationships, affecting vicarious employer liability.
• Employment now extends to clergy, tested by whether the church-clergy relationship could cause vicarious liability and whether a connection exists between the relationship and the individual's act or omission.
• E v English Province of Our Lady of Charity [2013] QB 722 led to the courts deciding clergy could be in a relationship akin to employment, and concept extended to cover prisoners and sales assistants.
• A relationship akin to employment leads to vicarious liability.
• When establishing employee status, important to ascertain who the employee actually works for.
• When equipment is hired with an operator, it is a matter of contract to see who remains an employee of the hirer
• Control of payment of wages and the length of service with the hiring company will determine vicarious liability.
• Both employers can be vicariously liable for an employee's tort in certain situations.