Remedies

Question 1

Compensatory damages overview

Answer 1

Livingstone: Aim to put the claimant in the position they would have been in if the tort had never been committed.

Of course, fictional - sum of money cannot reverse irreparable injury but can compensate in best way.

Question 2

Aggravated damages (a sub-species of compensatory damages) Duke of Sussex v MGN

Answer 2

Duke of Sussex v MGN: Not to punish, but to compensate where additional injury done to dignity, self-respect and pride.

Rookes also said that they do much of the same work as punitive damages - justification to reduce scope of punitive

Question 3

Young v Downey - Aggravated damages in negligence?

Answer 3

Aggravated damages became available for a claim in negligence, in a psychiatric harm case.

Question 4

Punitive (or exemplary damages) - Rookes v Barnard

Answer 4

Purpose is to punish and deter.
Never awarded in a negligence claim. Relevant that in crim law, standard of proof is beyond reasonable doubt, whereas we have balance of probabilities in civil law standard so easier to make out in civil law

Three categories of case in which punitive damages may be awarded:

1. Oppressive, arbitrary or unconstitutional action by the servants of the government
2. D’s conduct has been calculated to make a profit, which may well exceed compensation payable to the plaintiff.

AT v Dulghieru - Sex trafficking - this class of claimants unlikely to sue and if they did, their damages likely to be lower than profit.

AXA v FCS Ltd - Motor insurance fraud - high amounts awarded whereas low lawsuit costs, so punitive damages often awarded.

3. Any category in which exemplary damages are expressly authorised by statute

Criticised in Cassell v Broome

Question 5

Cause of action test - Kuddus?

Answer 5

This was an additional limitation, which stated that for punitive damages to apply, it would need to have been available pre-1964.

This was abolished in Kuddus.

Question 6

Arguments for and against punitive damages

Answer 6

For:

1. Discourages wrongs - lower standard of proof, more deterrence
2. Can prevent state overreach
3. Distinction between civil and criminal law is not a bright line nowadays, civil courts award compensation and can declare that a crime has taken place
4. Criminal law not perfect, civil law helping to deter wrongs should be welcomed

Against:

1. Why should money of deterrence go to claimant, rather than say the state?
2. Growth of public authorities have been used to hold police and public bodies to account - why should they not be used?
3. Unclear that punishment has a role to play in tort law.
4. Criminal procedure gives greater protection to defendant through higher standard of proof. However, answer could be that civil punishment is different animal to criminal punishment. Civil doesn’t come with stigma of criminal prosecution, jail time, criminal record, so no reason for them to have the same standard.

However, recognised in Rookes that punitive damages can be so onerous that they may be worse than being criminalised, and yet there is a lower standard of proof so courts must show restraint in using them.

Question 7

Nominal damages - Parker

Answer 7

C has been the victim of a wrong, but no damage has resulted.

Does not apply for negligence - negligence requires a form of actionable damage.

Parker v Chief Constable of Essex: Nominal damages awarded where man detained unlawfully, but the power existed to detain him lawfully so he would have been imprisoned regardless - no harm.

Question 8

Contemptuous damages - Grobbellaar

Answer 8

Technical legal victory for C but the award reflects disapproval of C in bringing the claim at all – primarily an issue only in defamation.

You might have won, but it is only really technical and you may have in fact lost due to the legal costs.

Grobbellaar: Goalie sued newspapers who made match-fixing allegations. Papers had no proof that he had, but it later emerged in courts that he did partake in reprehensible behaviour.

HL reduced damages to £1

Question 9

Vindicatory damages (not recognised in UK)

Answer 9

Can claimant get substantial, and not nominal damages, on the basis that their right was infringed?

Lumba: Claims by criminals who were detained under unlawful policy. However, even without the unlawful policy, they would have been imprisoned lawfully.
Nominal damages awarded.

Question 10

Advantages of lump sum awards

Answer 10

Advantages:
1. Closure for both parties
2. Certainty of liability for insurers
3. Minimises admin costs of keeping files open
4. C free to spend/invest lump sum

Disadvantages:
1. Inaccuracy in calculating future losses - always going to be too high of an award or too low.
2. Risk of C squandering the lump sum award - counter with autonomy argument.

Question 11

Senior Courts Act

Answer 11

1. Allows for interim payments to cater for claimant’s pre-trial needs as the court thinks just.
2. Allows for provisional damages - if there is a chance you will develop a future disease or condition due to the tort, you can come back and make an additional claim for it. This attempts to address the inaccuracy problem - however, strong limits - you have to specify the condition.

Question 12

Periodical payments orders - Damages Act s2

Answer 12

Court may allow damages to be in the form of periodical payments.

Question 13

Pecuniary losses 1: costs of care

Answer 13

C claims for medical and caring costs incurred or to be incurred.

Question 14

Mitigation of caring costs by using NHS care rather than private?

Answer 14

Law Reform (Personal Injury) Act 1948 s 2(4) solves this - it is not to be considered. You still have to be reasonable in the care you use.

Question 15

Cost of care provided to C gratuitously?

Answer 15

If C is injured, and A gives up work to look after them, not easy to claim for this as there is no direct cost, which there would be if they hired a carer.

However, Donelly v Joyce allowed such claims - C able to recover for gratuitously provided carying services.

Hunt v Severs: Money held on trust for the voluntary carer. Donnelly does not apply where the tortfeasor is the one providing gratuitous care. Otherwise the claimant is charging the defendant’s insurer to then hold that money on trust for the defendant - defendant profits.

Question 16

Pecuniary losses 2: Calculating loss of earnings - Multiplier method

Answer 16

Court works out net annual loss (multiplicand) and multiplies that by the number of years the loss will be suffered (how long you would have worked until retirement).

Knauer v MOJ - Beginning point is date of trial, not date of injury

Question 17

Net discount rate, Wells v Wells

Answer 17

We discount the value of the total multiplier by a percentage, since the claimant is able to invest the lump sum

Wells v Wells - Plaintiff must ensure damages do not run out - he cannot afford to lose them, so he would be more conservative and cautious than an ordinary investor and would use safe investments.
They thus set the discount rate at 3%.

Later reduced and varied, now it is 0.5%

Question 18

Vicissitudes of life - Jobling

Answer 18

Your multiplier is also reduced to reflect the vicissitudes of life - this acknowledges that things do not always go smoothly - you might have suffered injury, had to retire early, career change etc which mean you don’t make the full amount you potentially could have.

Jobling: Took account pre-existing condition, so employer only liable for 4 years that they actually caused him not to work, since his pre-existing spinal condition would have rendered him disabled anyway.

Question 19

The lost years? Pickett + Whipps Cross

Answer 19

Can one recover for years lost out of one’s life expectancy?

Pickett v British Rail Engineering - Yes
Damages were meant to benefit claimant’s dependents. If C was alive, he would have earned and saved to pass it on. If we don’t give anything, we would rob the claimant of the ability to pass on money to their loved dones.
Although deductions made for living expenses, food rent etc that C would normally incur which they won’t now that they will be dead. Also vicissitudes reduction.

Whipps Cross v Iqbal - Child cannot recover for lost years, too difficult to calculate earning capacity. However can get some award for loss of earnings.

Question 20

Non-pecuniary loss 1: Pain and suffering - Lim Poh

Answer 20

Compensation for distress and unpleasant effects of the tort on C’s body and mind.

Subjective loss - C must perceive it (Lim Poh Choo v Camden). Thus, permanently unconscious claimants cannot make a claim for this

Question 21

Non-pecuniary loss 2: Loss of Amenity - H West Son

Answer 21

Compensate the loss of C’s ability to live his or her life in the same way as they did before (eg loss of ability to play sport, sexual enjoyment etc). Compensates for what the tort has denied you effectively.

Assessed objectively. H West & Son v Shephard - An unconscious person is still actually deprived of the ordinary experiences and amenities of life.
In Lim Poh, although pain and suffering claim denied, 20k awarded for loss of amenity.

Dissent in H West: Lord Reed - you are awarding damages to restore someone to the position but for the tort, but this is not possible here - they will never recover in any remote degree or be able to experience the compensation we are giving them.

Question 22

Calculation of damages for non-pecuniary loss - Heil v Rankin

Answer 22

CA provide guidelines, and Judicial College Guidelines are useful.
Band for each injury with 2 figures - the award expected to fall within that range.

Heil v Rankin - discretion ultimately remains with courts to set and review levels of award.

Courts provide a single award for both pain and suffering and loss of amenity - that comes under non-pecuniary loss

Question 23

AJA s1 - damages for the loss of life expectancy itself

Answer 23

No damages to be awarded for loss of life expectancy - this doesn’t affect loss of earnings/income claims though

Pain and suffering damages may take into account any suffering caused or likely to be caused due to the awareness that his life expectancy is shortened.

Question 24

Civil Liability Act 2018 - Whiplash

Answer 24

s1 and s3 - Whiplash injuries and their damages

Question 25

Collateral benefits - Charity, Insurance and Benefits

Answer 25

Concerned with benefits the claimant would not have received but-for the tort, ie charitable donations, sick pay etc. Do we deduct those? In many cases we do (ie with sick pay), with 3 exceptions: 1. Charitable donations (Parry v Clearer) - If we deduct these, we benefit the tortfeasor at the charitable giver's expense, disincentivising charity. 2. Insurance payments (Bradburn v Great Western Railway) - If C had the good sense to take out insurance policy, we should not deduct lump sum paid out, since C paid the premiums under the policy, and so should accordingly benefit. Same for occupational pension schemes. 3. Social security - Benefits from the state are ignored in calculating the lump sum, but are deducted by the relevant government department when paid to C. This is detailed by the Social Security (Recovery of Benefits) Act 1997, to ensure state is not out of pocket. Govt department liases with D, works out the payments paid to C in social security, and that value of payments is paid to the government department. State's costs thus passed onto tortfeasor, neither state nor C out of pocket.

Question 26

Mitigation of loss - British Westinghouse

Answer 26

D not liable for damages that C should have avoided. If C could have avoided loss by taking reasonable steps after the tort, no damages can be recovered for that loss (British Westinghouse) You are also under a duty to try to find some kind of work - you can't go 5 years unemployed when you could have worked, then claim for that at trial.

Question 27

Effect of death on existing causes of action - Law Reform (Miscellaneous Provisions) Act 1934, s1

Answer 27

All causes of action subsisting against or vested in him shall survive against or for his estate. Does not apply for defamation, or bereavement claims - these are personal to the deceased and don't pass onto the estate. Also damages do not include exemplary damages, damages for loss of income after death (as that is covered by Fatal Accidents Act), does not include loss or gain to estate on death, except funeral expenses.

Question 28

With all the exclusions, what is left in the Law Reform (Miscellaneous Provisions) Act? + Length of potential time from Hicks

Answer 28

Claims for damages suffered in the period between the date of accident and the date of death, plus funeral expenses. Eg pain and suffering between those dates, lost income between those dates etc. Hicks - If the time between those two incidents is very short, there is no claim. 20 mins, subject to de minimis rule so no claim.

Question 29

Death creating a cause of action 1: Bereavement under Fatal Accidents Act

Answer 29

S1A - Bereavement (narrower claim) Only available for wife/husband/civil partner, cohabiting partner, parents (if legitimate), mother (if illegitimate) Award is £15,120. Divided equally amongst more than one person if multiple claimants. Law Com proposed expanding this list to children whose parents are killed. Also arguably a bit dodgy that only mother can claim if child illegitimate - what if father unmarried but still involved?

Question 30

Death creating a cause of action 2: Loss of dependency

Answer 30

First, death must be caused by some wrongful act, neglect or default such that the person injured would have been able to recover damages if they hadn't died. Actions may benefit same people plus any other dependants which is a wide list, see s1(3) - parents and children, ascendants and descendants as step-children and other relations. Law Com proposed additional category - those maintained by the deceased prior to their death eg a godfather.

Question 31

Assessment of dependency damages - s3

Answer 31

As proportionate to the injury resulting from the death suffered by the dependants. In practice, multiplier method with deductions, however deductions are bigger since we are not only making deductions for vicissitudes in the deceased's life, but also in the dependent's life. With children, the court say that their dependence lessens as they get older - you can't say you would be dependent until 50. If the loss of dependency is non-financial, difficult eg a carer mother who dies. Court here would ask how much a nanny would cost to get as close as possible. Note that under s3(3), we do not take into account the fact that a widow could remarry/has remarried if her husband had died. Arguably a bit strange as it does affect situation and dependency. Also, s4 requires you do disregard any benefits which have accrued to the person as a result of the death. Effectively makes s3(3) obsolete and says that any benefits at all are to be ignored. Arguably strange - causes double recovery - Law Com recommended getting rid of this.

Question 32

H v S - benefits accrued + gratuitous care?

Answer 32

Mother passed away, father and stepmother provided gratituitous services. These were a benefit accruing from the death of M, and should thus be disregarded when assessing loss. These damages were to be held on trust for the father and stepmother so they could be paid for those services.

Question 33

Baker v Bolton (starting position for consideration of death)

Answer 33

Death does not count as a personal injury and does not warrant compensation. Of course overturned by subsequent case law and statutes but interesting to note.