Flashcards in Week 6 Material Deck (49)
GENERAL PRINCIPLE Remedies
Overall aim – compensation for the loss suffered as a result of the defendant’s tort – to place the claimant, as far as possible, in the position he or she would have been in had the injury not occurred.
Damages divide into general and special damages.
General Damages in Personal Injuries Claims
Heads of General Damages?
General damages represent the losses that the claimant cannot precisely quantify (both in the past and future). These have to be assessed by the court in general terms, often in broadly conventional figures.
Heads of General Damages include:
• Pain, suffering and loss of amenity
• Loss of earning capacity (disadvantage on the labour market)
• Loss of congenial employment
• Loss of pension rights
Special Damages in Personal Injuries Claims
Special damages are awarded to compensate for the claimant’s actual pecuniary loss between the date of the injury and trial. Each head of special damage should be capable of precise calculation. Each item must be specifically pleaded and proved.
No limit as to what can be claimed, subject to rules of causation, remoteness and mitigation. Heads of Special
• Past loss of earnings
• Damage to clothing, property, the car etc
• Out of pocket expenses, such as the cost of medical appliances, prescriptions, travelling to medical appointments
• Cost of nursing care, any private medical treatment
Total Award in Damages
In a typical personal injuries claim, the damages C should receive will comprise:
(a) Damages for pain, suffering and loss of amenity. This is based on the severity of the injury. The amount under this head is usually described as being a “conventional” amount. There are guidelines and comparable cases. The judge usually awards a round figure, which will be unappealable provided it comes within the correct broad bracket.
(b) Past loss of earnings
(c) Future loss of earnings
(d) Past out-of-pocket expenses
(e) Future out-of pocket expenses
(f) Interest on past losses
(g) Less State Benefits received by the claimant in the 5 years following the accident
If there is a finding of contributory negligence, the award (items (a) to (f)) will be reduced by the percentage of contributory negligence. State Benefits are still repaid to the State by D in full.
1. PAIN SUFFERING AND LOSS OF AMENITY
Pain and suffering
This covers both the past and future pain and suffering caused by the injury. Level of damages will depend on the duration and intensity of the pain suffered. It covers mental anxiety, fear, distress and embarrassment caused by the injury.
Loss of amenity
This is the reduction of the claimant’s ability to perform everyday tasks and enjoy life. It does not matter whether the claimant is conscious or not (e.g. permanent vegetative state). It includes impact on work and leisure activities, hobbies and interference with sex life (medical reports use the term “libido” for this).
• Claimant’s witness statement
• Hospital and GP records
• Medical reports in the litigation
• Photographs, x-rays, MRI scans etc
Stage 1 – identify the nature of the injuries from the evidence
Stage 2 – Judicial College Guideline range for those injuries
• There may be arguments over the exact category that should apply
Stage 3 – Case reports to find comparable cases
• Kemp and Kemp; Lawtel; Butterworths Personal Injury Litigation Service; Current Law
• Typically one above, one below, sometimes with a third one very near the claimant’s circumstances
- Similar injury
- Similar age
- Similar treatment / duration of symptoms / prognosis / recovery
Stage 4 – Adjust case law figure for inflation
• Inflation Table in Kemp & Kemp
• Based on Retail Price Index (RPI)
Stage 5 – Heil v Rankin: adjust award if case law is before March 2000
Stage 6 – Simmons v Castle: adjust award by 10% if case law is before April 2013
Heil v Rankin (Stage 5)
1996 Law Commission – recognised that awards for general damages for PSLA were too low and recommended general increases.
Heil v Rankin  QB 272 CA partially implemented the recommendation:-
1) General damages less £10,000 - nil increase. Many fast track cases no increase. Those at £15,000 were uplifted 1.2% (£179)
2) Maximum damages £150,000 increased 33.33% i.e.£200,000
3) Cases in between subject to tapered increases
4) Eg, old award of £80,000 was increased to £95,000 (19% increase)
Simmons v Castle (Stage 6)
The Jackson Reforms included a 10% increase in PSLA awards in PI claims (as well as a 10% increase in all other damages claims of a personal nature). PSLA awards are 10% higher than previously, "unless the claimant falls within LASPO 2012, s 44(6)".
This means that there will be no 10% increase after 1 April 2013 if the claimant has a pre-LASPO CFA agreement. This is because the 10% increase was to compensate for the loss of recoverability of CFA success fees, and if C has a pre-LASPO CFA, they would get the best of both worlds.
2. PAST LOSS OF EARNINGS
Claimant employed at the time of the accident
Damages on this head are based on:
• the amount the claimant would have been earning had he not been injured
• less the amount the claimant has actually earned since the accident
Cookson v Knowles  AC 556
• All calculations of lost earnings are done net, after deducting tax, national insurance and other stoppages from pay like compulsory contributions to a pension scheme
British Transport Commission v Gourley  AC 185
Stage 1 Find C's pre-accident net income
Stage 2 Find C's post accident net income
Stage 3 Subtract stage 2 amount from stage 1
Stage 1: Pre-accident net income
• Pay slips and P60s
• Employers invariably also have these details
• Traditional calculation for manual workers is based on the weekly average of the 13 weeks of actual net pre-accident earnings
• Nowadays, looking at 6-12 months pre-accident earnings gives a better average
Stage 2: Post-accident net income
(a) If continues in the same job at the same salary = no loss of earnings
(b) If continues with same employer, but at a lower salary. Or if C loses their job as a result of their injuries, but gains other, lower paid, employment.
• Need similar evidence from pay slips etc on the post accident income
• Use net figures again
(c) If C has not worked since the accident
• Did C lose their job because of their injuries (a causation issue)
• Is C fit enough to do any work (a medical issue)
• Has C tried hard enough to find alternative employment (a mitigation issue)
Stage 3: Find difference between pre-accident and post-accident net income
There are two basic approaches, both of which are intended to produce the same answer.
(a) Do the calculations on a weekly or monthly basis. On this approach:
• start with (say) C's pre-accident weekly net income
• deduct C's post-accident weekly net income
• that gives you C's weekly net loss of income
• multiply the result by the number of weeks since the accident
(b) Do overall calculations for the period since the accident:
• start with C's pre-accident net earnings per week or month
• multiply that by the number of weeks or months since the accident
• calculate C's actual net income for the entire period since the accident
• subtract the figure found at bullet 3 from the figure at bullet 2
3. FUTURE LOSS OF EARNINGS
Basic Approach to Future Loss
The basic approach is to find the annual loss for each head of damage, and multiply that annual loss by a number of years’ purchase.
• Annual loss should be the net annual loss
• Number of years’ purchase is to cover the period between the date of the calculation and the date the loss will stop
• That might be retirement or death
• It might be some other date, for example if the medical evidence indicates that the claimant will recover enough to return to work in 5 years’ time
On the basic approach, each head of future loss or damage is calculated using a multiplication sum:-
Multiplicand = net annual loss / earnings calculated as at the date of trial etc
Multiplier = number of years’ purchase to retirement date
Rarely this simple
For the reasons set out below, it is rare for the calculation to be this easy. There are other factors, such as recovery of the money as a lump sum rather than spread over the years, or the claimant having some, but a reduced, earning capacity, that complicate most calculations
Future Loss of Earnings
Issues affecting future loss of earnings include:
• Chances of the claimant dying before reaching retirement age
• The value today of a lump sum representing all the potential earnings through to retirement age
• Taking into account the claimant’s post accident earning ability on what may be reduced levels of earnings
• Job security
• Prospects of future promotion/better paid employment
The first 2 are dealt with by using an Ogden Tables multiplier, not the simple number of years to death or retirement
The next 2 are dealt with by adjusting the Ogden Tables multiplier using an adjustment multiplier derived from Tables A to D at para 42 of the Ogden Tables Explanatory Notes
The 5th is dealt with by adjusting the multiplicand, or by doing a larger number of calculations for different periods in the future
Loss of Earnings of Claimants under 18
Young claimants are unlikely to have started work yet, so have no direct evidence of their earnings history. It is therefore often necessary to construct what their earnings are likely to have been had they not been injured. This may be done using a comparable member of the family or a class-mate.
Parents and family – for evidence of the claimant’s likely social, economic, educational and employment progress but for the accident.
• May assume career path of siblings / parents- family
• Or, look at the child’s academic history and ask judge to infer a career
• National Earnings statistics may be used to find an average annual salary for someone in a career that the claimant is likely to have chosen:
Theoretically, the multiplier is used to find a notional capital sum which would buy an annuity which would provide an annual income equal to the claimant’s continuing annual loss for the remainder of his life, with a nil balance on his death.
Ogden Tables, produced by Sir Michael Ogden QC, are actuarial tables currently based on methodology advanced by City University, London and Cardiff Universities. They provide multipliers for claims for future losses taking into account the effects of advance receipt of damages, mortality and other contingencies.
Basic steps for calculating future loss
• Find net annual pre-accident earnings
• Find appropriate Main Ogden Table based on sex of the claimant, and whether the loss is for life or loss of earnings to different retiring ages, or for lost pension
• Find the multiplier in that Table based on age and 2.5% rate of return
• Adjust the multiplier for non-death contingencies, using Ogden Non-death Contingency Table A to D
• Multiply the annual loss by the adjusted multiplier
Rate of Return (Discount Rate) for Ogden Tables
The notional capital sum required to compensate for a future loss depends on the rate of return that would be earned if the money were wisely invested. The Damages (Personal Injury) Order 2001 (SI 2001/2301) fixed this at 2.5%.
This means we use the 2.5% column in the Ogden Tables.
Cooke v United Bristol Health Care  1 WLR 251
Held: An attempt to introduce expert evidence from a chartered accountant to support the use of a higher rate of return was an illegitimate attempt to subvert the Lord Chancellor’s discount rate.
Find adjustment multiplier
Tables A to D provide adjusters based on:
(a) the claimant’s age at trial/calculation
(b) whether the claimant was at the time of the accident/now employed or unemployed
(c) the claimant’s educational status / skill level, which is either
• Degree or equivalent (“D”)
• GCSE grades A-C through to A levels (“GE-A”)
• Below GCSE (“O”)
Find adjustment table
To do this, first find the relevant table of adjusters in the Ogden Tables Explanatory Notes at para 42. There are 4 tables:
Table A Males – not disabled
Table B Males – disabled
Table C Females – not disabled
Table D Females – disabled
Calculate non-death adjusted multiplier
Multiply the original Ogden Table multiplier (based on death contingencies) by the adjustment multiplier (based on non-death contingencies). Doing so produces an overall multiplier that takes into account both death and non-death contingencies.
In our example of a 45 year old male, employed claimant with a degree, Table A provides an adjuster of 0.86.
We multiply the Table 9 basic multiplier (15.27) by the adjuster (0.86)
Adjusted multiplier = 15.27 x 0.86
Multiply annual net loss by adjusted multiplier
Multiply the pre-accident-based multiplicand by the adjusted overall multiplier. This produces a global, discounted, figure for the Claimant’s net loss of earnings based on his pre-accident job through to retirement age.
Find percentage of contributory negligence, then deduct that percentage from the overall award.
6. COMPENSATION RECOVERY UNIT
Offset of benefits against compensation
Social Security (Recovery of Benefits) Act 1997
System for recouping State benefits paid to accident victims in the first 5 years after the accident from the negligent defendant
Before D is allowed to make a compensation payment to C, D must obtain a CRU certificate from the Compensation Recovery Unit (in Washington, Tyne & Wear). This is why dates of birth, NI numbers etc are required from C under the PI Protocol.
Must pay the full amount stated on the certificate to the DWP when paying PI compensation to C
May deduct from the compensation paid to C an amount equal to the benefits on the certificate which are capable of being offset
Offset of benefits against compensation
1. Damages for PSLA are “ring-fenced” for the claimant
2. Other benefits shown on the certificate are offset against “like for like” heads of damages, as set out in SS(RofB)A 1997, sch 2
1. Compensation for earnings lost during the relevant period
Disablement pension payable under section 103 of the 1992 Act
Invalidity pension and allowance
Reduced earnings allowance
Severe disablement allowance
Statutory sick pay
2. Compensation for cost of care incurred during the relevant period
Care component of disability living allowance
Disablement pension increase payable under section 104 or 105 of the 1992 Act
3. Compensation for loss of mobility during the relevant period
Mobility component of disability living allowance
Note: this table has not kept up with changes in the Benefits system.
Period covered by recoupment
• 5 years from accident
• Or accident to settlement or trial, if earlier
Is ignored. D pays DWP full amount on certificate, even if C guilty of contributory negligence
Wisely v John Fulton  2 All ER 545
C ignores CRU recoupment when calculating interest. I.e., interest is calculated on the full amount of past losses, even though the amount C receives may be wiped out by CRU recoupment
Griffiths v British Coal  PIQR Q119
Interest on a head of claim is included in the “like-for-like” offsetting process
7. OTHER HEADS OF GENERAL DAMAGES
Disadvantage on the Labour Market
Loss of Earning Capacity (Smith v Manchester Corporation (1974) Court of Appeal)
Disadvantage in seeking employment in the labour market caused by residual disability awarded for any loss of earning capacity in the future. No award unless there is a real or substantial risk of losing employment in the future.
Quantifying – multiplier / multiplicand approach
Multiplicand = net annual salary
Multiplier = fraction of year, up to a usual max of 5 years
Smith v Manchester awards are listed Kemp and Kemp – majority £5,000- £20,000
Loss of Congenial Employment
Where loss of employment is not replaced by equally enjoyable position = compensation for the mental impact of loss of job satisfaction.
Awards are typically from £500- £10,000. Current trend is to increase what was a £5,000 ceiling in the 1990s.
Loss of pension rights
Damages are awarded to compensate a claimant for loss or reduction in his pension where the injury has terminated or interrupted his employment. This is seriously complicated.
• Damage to C’s car
• Clothes cut off C by hospital staff
• Purchase of a wheel-chair
Medical expenses reasonably incurred
Claimants not obliged to use NHS: NHS (Law Reform) (Personal Injuries) Act 1948, s. 2(4)
• Cost of medicines / prescription charges
Sowden v Lodge  1 WLR 2129
The question is whether the treatment included in the schedule of special damages is reasonable.
Unpaid family care?
Unpaid care provided by family
Calculated on the basis of:
• the commercial cost (i.e. local hourly rate) (British National Nursing Association figures) (Cunningham v Harrison  QB 942)
• discounted to reflect the fact the care is provided gratuitously. Typically, a 20 to 33% discount is applied (see Housecroft v Burnett  1 All ER 332)
SCHEDULE OF PAST AND FUTURE LOSS AND EXPENSE
The practice is to identify relevant heads of general damages in Particulars of Claim and Schedule of Loss, but not to insert specific figures.
Full calculations are needed, down to the £, on past and future pecuniary losses.
PD 16, para 12.2
Defendant should include in or attach this to the Defence. It should state:
(a) items which are agreed, disputed or neither
(b) alternative sums for disputed items
1. Which of the following may be started in the High court?
a) A claim damages for personal injury for £60,000:
b) A non personal injury claim for £60,000 which raises complex legal issues:
c) A claim for £98,000:
d) A claim for damages of £125,000, where there is a counterclaim for £30,000:
e) A claim prescribed by statute to be started in the High Court:
f) A claim for personal injury for £35,000 with complex medical evidence:
a) Yes, HC PD7A para 2.2
b) No, never, HC PD7A para 2.1
c) No, CC, unless PI claim PD7A para 2.1
d) Yes, HC because CC is disregarded CPR r16.3(6)
e) Yes, must be HC
f) No, never HC PD7A para 2.2
If a claim could be started in the High Court, it must be started there. True or False?
PD 7A para 1
In determining whether a case should be started in the High Court or the County
Court, it is not relevant to consider whether the claim raises issues of public
importance. True or False? PD7A para 2.4(3), subject to paras 2.1 and 2.2
All Chancery business must be started in the High Court. True or False? PD 7A para 2.5
Statutes may provide that certain cases must be heard in the County Court. True or false?
T Eg Consumer Credit Act claims
There are 3 divisions in the High Court: the Chancery Division, the Queen’s Bench Division and the Family division. The distribution of work between the divisions can be found in Schedule 1 of the Senior Court Act 1981. True or false? (see para 9A- 398-400, Vol 2 WB, p 2812)
Which of the following factors should be discounted when determining the value of a claim?
a) That the Defendant is likely to raise contributory negligence
b) That interest will be awarded on any damages
c) That the defence may include a set off
d) That the claimant may be liable to make repayments of social security benefits
e) That a successful claimant is likely to receive costs
All of them: r16.3(6)
*This rule is referred to in para 9 of the High Court and County Court Jurisdiction Order 1991 (Vol 2, 9B-948, p 3017).