Damages (Compensation)

Aim of Tort

Definition (AO1)

To put the claimant in the position as if the tort had never occurred i.e. their pre-tort position. It is not designed to punish the wrong doer but to compensate the victim

Compensation structure

(AO2)

1. Type of Damages

2. Lump Sum or Structured Settlement

3. Mitigation of Loss

What are damages

Definition (AO1)

They are the remedy a successful Claimant is entitled to when injury or property damages has been caused by D through negligence - also known as compensation

Types of Damages

1. Special Damages

2. General Damages

Special Damages

Definition (AO1)

These are the amount which can be easily calculated from the breach of duty up to the trial (or settlement). They are straightforward and usually not controversial. These damages are also referred to as pecuniary loss e.g. Loss of wages, medical expenses and cost to replace / repair property damage.

Special Damages

Case (AO3)

(Povey v Governors of Rydal School)

C who had been injured during a poorly controlled rugby scrum, received an award for a hydraulic lift to take a wheelchair in and out of a car

General Damages

Definition (AO1)

These generally cover losses that are not capable of being calculated precisely and require an assessment by the court (AKA known as Non-pecuniary losses)

• Pain and suffering - including distress and reduced life expectancy

• Loss of amenity - relates to the quality of life

• Future loss of earnings

• Ongoing / future medical expenses

These losses need to be assessed by the court based on evidence supplied by the C and any evidence to challenge the claim can be put forward by D.

Loss of Future earnings

Definition (AO1)

Calculating lost earnings from the accident to the trial is relatively easy as those earnings are known. The difficulty for the court is that it must make the assessment at the date of the trial for future lost earning in the future, if the accident had not occurred.

Loss of Future earnings - Considerations

(AO2)

Pay rises / Promotions, Career, Progression, Bonus, Age

Lump Sums and Structured settlements

Definition (AO1)

Under Damages Act 1966 allows for structured settlements.

A structured settlement is an arrangement that provides C with periodical payments over the course of several years or for the rest of C’s life. Especially relevant when the C suffers serious and permanent (Catastrophic) injury. This allows for a wait and see approach so that the damages can be reassessed which is fairer on both parties.

Parties can also agree that damages will be paid by staged payments. Each party will then have the power to go back to court to ask for the payments to be lowered (D) where the C has made a faster/more improved recovery than expected and similarly the claimant can ask for payments to be increased where they suffer slower recovery or more extensive harm than expected.

Judges have no power to order a structured settlement if the parties do not agree to it

Mitigation of Loss

Definition (AO1)

C is under a duty to mitigate their loss i.e. to take reasonable steps to keep their losses to a reasonable level. D is not expected to pay damages for a loss that C could avoid by taking reasonable steps.

e.g. If C’s car has been put out of action, C may claim for the cost of a suitable hire car but not for the use of a luxury limousine.

Mitigation of Loss

Case (AO3)

(Motor Works Ltd v Alwahabi)

Injunctions

Definition (AO1)

Order made by Court to stop D from doing something.

If breached, the subject of the order will be in contempt of court

Often used in nuisance cases

Injunctions made at the resolution of the case are known as Perpetual injunctions

Injunctions

Case (AO3)

(Coventry v Lawrence)

SC criticised the tendency of courts to almost automatically impose injunctions in nuisance cases.

Likely that injunctions will be granted less often in future, particularly where such an injunction would have a severe impact on the person causing the nuisance, and the inconvenience to the C is relatively small.

Mandatory Injunctions

Definition (AO1)

Order made by Court to force D to do something

e.g. soundproofing a noisy factory, or fitting filters to reduce levels of pollution.