Damages

Question 1

Introduction to damages

Answer 1

(ALWAYS APPLY TO THE SCENARIO)

• The aim of damages (compensation) is to put C back into the original position he would be in had the negligence not occurred.
• Damages can be a lump sum (one payment) or a structured settlement (payments spread out over time following the Damages Act 1996). As outlined in Jefford v Ghee there are two types of loss.

Question 2

Special damages

Answer 2

-Special damages are treated separately as the amount can be calculated precisely using receipts and invoices etc.
-This type of damages only includes pecuniary loss (which is financial loss).
-A claimant can claim for:
 -loss of earnings up to the date of trial.
 -medical expenses up to the trial;
 -for damage to property (repairing or replacing property at market value)

Question 3

Extra point if there’s time

Answer 3

Special damages can also cover the cost of relatives having to provide care (Giambrone) or specialised transport/accommodation (Povey)

Question 4

General damages

Answer 4

• General damages cannot be calculated precisely -they include pecuniary and non-pecuniary (not money based/financial) loss.

Question 5

Pecuniary general losses cover

Answer 5

• future loss of earnings

- cost of future medical care (calculated using multiplier and multiplicand).

Question 6

Non-pecuniary losses include

Answer 6

• pain and suffering;
• personal injury using the ‘tariff’ system outlined by the Judicial Studies Board, and guidance from Kemp & Kemp;
• loss of amenity, i.e. future changes in lifestyle, e.g. unable to enjoy activities previously done, (including lost ability to complete a job C enjoys Hale).

Question 7

What does C have a duty to do?

Answer 7

Mitigate or limit his loss (Cunningham v Harrison)

-This includes avoiding the use of private healthcare, unless the NHS do not provide an alternative, following the Law Reform (Personal Injury) Act 1948.