Remedies - Non-Fatal (Negligence)

Question 1

Remedies - Non-Fatal Incidents:

One action rule

Answer 1

C may bring only one claim based on one set of facts

One lump sum awarded to C to cover both past and future losses

Question 2

Remedies - Non-Fatal Incidents:

Mitigation

Answer 2

C has a duty to take reasonable steps to avoid losses.

C should not benefit from incident

Question 3

Remedies - Non-Fatal Incidents:

Contributory Negligence

Answer 3

Any damages will be reduced for any findings of contributory negligence

Question 4

Remedies - Non-Fatal Incidents:

Non-Pecuniary losses

Answer 4

One figure is given to cover both heads:

• pain and suffering
• loss of amenity

Question 5

Remedies - Non-Fatal Incidents:

Damages for pain and suffering

Answer 5

Covers past, present and future pain;
physical and mental anguish;
fear of future surgery

Question 6

Remedies - Non-Fatal Incidents:

Subjective test used to award damages for pain and suffering

Answer 6

Wise v Kaye

Question 7

Remedies - Non-Fatal Incidents:

C must be aware of injuries to claim for pain and suffering - cannot claim for period where unconscious

Answer 7

Wise v Kaye

Question 8

Remedies - Non-Fatal Incidents:

Factors to consider for pain and suffering

Answer 8

Was injury to dominant or non-dominant limb?
Number of operations required
Recovery time
Permanence of disability/Scarring

Question 9

Remedies - Non-Fatal Incidents:

Damages for loss of amenity

Answer 9

Covers loss of enjoyment of life, loss of sight/smell/freedom of movement/marriage prospects etc.

Question 10

Remedies - Non-Fatal Incidents:

Objective test used to award damages for loss of amenity

Answer 10

West v Shephard

Question 11

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Medical expenses

Answer 11

Covers all reasonably incurred expenses resulting from accident
If pre-trial - special damages
If post-trial - general damages so need to use multiplier method (annual cost of treatment x number of years treatment likely to continue)

Question 12

Remedies - Non-Fatal Incidents:

s.2(4) Law Reform (Personal Injuries) Act 1948

Answer 12

May recover reasonable cost of private medical treatment

Question 13

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Loss of earnings pre-trial

Answer 13

Covers net loss of earnings from date of trial (including bonuses/perks)
These are special damages

Question 14

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Loss of earnings post-trial

Answer 14

Lump sum which when invested aims to provide claimant with income for rest of life
General damages so need to be worked out using multiplier method

Question 15

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Loss of earnings; the lost years

Answer 15

Claimant may claim for ‘lost years’ where C life expectancy has been shortened, so less working years (Pickett v British Rail Engineering)
Need to deduct from this figure the amount C would have spent on themselves (25% if married with dependant children; 33% if no dependants)

Question 16

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Loss of earnings for children

Answer 16

Children may be compensated for loss of earnings
Calculation will be based on factors such as national average salary, parents’ earnings, typical earning area of work in which child has shown potential

Question 17

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Cost of care

Answer 17

C may recover for necessary post-injury care services, as long as this need follows from injury caused by D’s negligence
(Schneider v Eisovitch)

Question 18

Remedies - Non-Fatal Incidents:

Housecroft v Burnett

Answer 18

A relative who gives up on work to care for C may also be compensated according to their loss of earnings, but only up to a commercial cost ceiling

Question 19

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Loss of earning capacity

Answer 19

Smith v Manchester Corporation
Awarded where C continues to work but is now disadvantaged
Award is typically 0-2 years net annual loss of earnings

Question 20

Remedies - Non-Fatal Incidents:

Pecuniary Losses - Other expenses

Answer 20

Any reasonable loss, such as damage to property or cost of household aids (eg dishwasher) will be awarded

Question 21

Remedies - Non-Fatal Incidents:

Deductions - Tax and NI

Answer 21

Will always be deducted from damages

Question 22

Remedies - Non-Fatal Incidents:

Deductions - Insurance payments, charitable/family help, ill-health pension payments

Answer 22

Not deducted unless to not over-compensate claims

Question 23

Remedies - Non-Fatal Incidents:

Deductions - State benefits

Answer 23

State benefits received as a result of the tort are to be deducted from 
loss of earnings;
cost of care;
loss of mobility;
but NOT from non-pecuniary losses

Question 24

Remedies - Non-Fatal Incidents:

Exception to One Action Rule - Provisional Damages

Answer 24

s.32A Senior Courts Act 1981

Question 25

Remedies - Non-Fatal Incidents: | Exception to One Action Rule - Period Payments

Answer 25

s.2 Damages Act 1996

Question 26

Remedies - Non-Fatal Incidents: | Multiplicand

Answer 26

Net annual loss of earnings | (increased for bonuses/perks and likelihood of promotion. Ignores inflation

Question 27

Remedies - Non-Fatal Incidents: | Multiplier

Answer 27

Actual period of loss from trial Reduced for early receipt and for contingencies of life - Ogden tables used to determine these reductions (Wells v Wells)