Principles of Remedies for Personal Injury & Death Claims

I was involved in a car accident caused by the negligence of another driver. I suffered a broken leg and damage to my vehicle.

What sort of damages might I recover here?

Property Damage:

• Damage to car itself;

• Cost repairs or replacement;

• Loss of use (i.e. hire another car).

Personal Injury:

• Compensation pain + suffering;

• Compensation activities I can’t do (i.e. play rugby);

• Medical expenses;

• Lost wages (i.e. unable work as builder).

True or False: Because occupiers’ liability and liability for defective products are covered under statutory regimes they do not operate off the standard principles of remedies for personal injury and death.

False.

Special rules to establish liability.

But same remedies as general negligence.

What is the aim of damages in tort?

Put CL in same position if tort had not been committed.

Difficult re personal injuries (i.e. can’t replace amputated leg).

Seen as ‘compensation’.

Is a CL under a duty to mitigate losses suffered?

Yes.

Cannot claim damages for avoidable losses if took reasonable steps.

Example - Lost job because of D’s wrongdoing; CL should seek another one.

Cannot ‘profit’ off a claim. Only restored to original position.

What is the ‘one action rule’?

CL only bring one claim on one set of facts.

Entitled to one lump sum over losses suffered and future losses.

Difficult task because injury could worsen.

What is the difference between special and general damages?

Special = Specific quantifiable losses. Examples: Medical expenses, lost wages, property damage, rehabilitation.

General = Non-monetary losses. Court decides subjectively. Examples: pain and suffering, emotional distress, loss of enjoyment, loss of consortium (impact on relationships).

When calculating damages for personal injuries, what categories do the courts divide the loss into?

Pecuniary = Capable mathematical calculation in money terms (e.g. lost earnings, medical bills).

Non-pecuniary = Not capable mathematical calculation (e.g. personal injury itself).

Latter assesses:

• ‘Pain and suffering’

• ‘Loss of amenity’

What is assessed under the heading of ‘pain and suffering’?

Covers past, present and future pain, physical and mental anguish fear future surgery etc.

Covers CL’s anguish over shortened lifespan.

Is the heading of ‘pain and suffering’ a subjective test?

[Wise v Kaye]

Yes.

CL must be aware of injuries (i.e. conscious) to recover.

If in coma will not be able to recover.

What is assessed under the heading of ‘loss of amenity’?

Loss of enjoyment of life.

Examples - Loss of freedom of movement, loss of sight, loss of hearing, inability pursue hobbies.

Is the heading of ‘loss of amenity’ an objective test?

Yes.

Able to recover whether conscious or not.

How are non-pecuniary damages typically calculated?

Individual facts of each case.

Refer Judicial College Guidelines, Kemp on Damages etc.

1000s of cases. Find similar one. Take estimate at settlement.

Pecuniary losses are those which are mathematically capable of being calculated.

How are medical expenses calculated here?

Pre-trial = Special damages. Total all medical bills.

Post-trial = General damages. Assess annual cost of treatment and years likely to continue.

Recover reasonable medical costs (i.e. wheelchair, adapt house).

If there is a choice between the NHS and private medical care, will the CL be barred from recovery because they choose the private option?

No.

CL’s choice won’t be deemed unreasonable.

But can’t recover costs if opt for free NHS care.

Pecuniary losses are those which are mathematically capable of being calculated.

How are loss of earnings pre-trial calculated here?

Pre-trial = Special damages. Put CL back in original position.

Awarded net income (i.e. after tax, NI, pension).

If regular overtime or company perks then include in award.

Pecuniary losses are those which are mathematically capable of being calculated.

How are loss of earnings post-trial calculated here?

Post-trial = General damages.

Difficult to calculate.

Person may never work, return to work after a year or earn less than before.

What is the basic formula used by the courts to assess future loss of earnings?

Multiplicand = Gross annual loss at trial date. Net income. Excludes inflation increase.

Multiplier = Period of time CL loses this money. If never work then ‘x years’ till retirement.

Example - 35yo plumber earning £25K. Expected retire @ 60yo.

25 years (multiplier) x £25K (multiplicand) = £625,000

Is the basic formula for assessing future loss earnings modified by the courts?

Yes - For fairness.

D could lump sum leaves CL overcompensated (i.e. invest whole sum + earn interest).

But if CL receive only monthly payments then excludes interest entirely.

Courts apply ‘discount [interest] rate’ of 0.25%.
Gives CL additional income. But maintain fairness.

Aside from the ‘discount rate’, what other modifications do the courts apply to the formula for assessing future loss of earnings?

Yes.

Unlikely person be in work all their life (i.e. made redundant, ill health).

Courts reduce multiplier to reflect this.

Maintain fairness between parties (i.e. no overcompensation).

Can I still recover lost earnings if the accident reduces my lifespan?

In other words - 35yo and expected to work for 25 more years, but now die at 40yo.

[Pickett v British Rail Engineering]

Yes.

Because others depend on my earnings (i.e. family, children).

Deduct amount you spend on yourself.

Married + dependent kids (25% reduction).
No dependants (33% reduction).

True or False: Children are not barred from recovering future loss of earnings.

True.

Despite never working.

Court assesses parents’ wages, national average earnings etc.

Can a CL recover the costs of care services under damages as a result of their accident?

[Schneider v Eisovitch]

Yes.

Need flows from injury caused by D’s negligence (Schneider v Eisovitch).

Help with housekeeping, nursing, gardening, laundry etc.

Carer cannot claim this from D.

If spouse / relative foregoes work then cost estimate from lost earnings.

NOTE - Cannot exceed commercial rate for these services (i.e. former lawyer cannot recover £150K for doing so).

What does the principle in Smith v Manchester Corporation establish with regard to loss of ‘earning capacity’?

CL still in job.

BUT - Risk that if redundant in near future will be disadvantaged due to disability.

Does not apply if unable to work, already forced to move to lower paid work etc.

If I receive insurance payouts, state benefits, charitable donations etc. as a result of the accident - will this reduce my award under a loss of earnings calculation?

Yes and no.

Principle that CL cannot be overcompensated applies.

Following are excluded:

• Insurance payments;

• Ill-health pensions;

• Charitable payments.

Are state benefits deductable from future loss of earnings calculations?

Yes and no.

If deducted - State paying for D’s negligence.
If paid - CL is overcompensated.

Solution?

Deduct from CL’s damages; D pays it back to the State.

Under what heads of damages can state benefits only be deducted?

• Compensation for lost earnings;

• Compensation for cost of care;

• Compensation loss of mobility.

Cannot deduct re pain and suffering or loss of amenity.

Must the courts always award damages as a lump sum? Are there exceptions?

No.

1. Provisional damages (i.e. if lose sight in eye then award ‘x amount’).

2. Personal injury damages in periodic payments.

What happens if the CL dies during proceedings or before issuing claim? Is their claim struck out?

No. PRs take up case on behalf of estate.

Irrespective of cause of death.

Claim survives death of either CL or D.

Lump sums or funeral expenses of CL’s estate ignored.

[Law Reform (Miscellaneous Provisions) Act 1934]

What losses may the deceased’ estate recover under the Law Reform (Miscellaneous Provisions) Act 1934?

Pain + suffering between tortious act and death.

Past losses: medical bills, care costs, lost earnings.

Recoverable up to date of death.

Can claim for funeral expenses under 1934 Act and 1976 Act but double-recovery not allowed.

Loss future earnings covered under Fatal Accidents Act 1976 for dependants.

What new cause of action is created under the ‘Fatal Accidents Act 1976’?

Dependants bring claim against D (usually PRs).

Based on CL’s original cause of action. Defences available (i.e. contributory negligence).

Must show had CL survived they would have been able to bring claim against D.

What are the three possible claims under the 1976 Act?

• Dependents’ claim for lost income and dependency;

• Bereavement damages;

• Funeral expenses (if not under 1934 Act).

I want to bring a claim for loss of dependency under the 1976 Act.

What must I satisfy?

1. Class of dependants (i.e. current / former spouses, parents, children, siblings, cohabitees >2 years).

2. Financially dependant - Reasonable expectation pecuniary benefit.

‘Pecuniary benefit’ = Money, DIY, child care, gardening, housework.

*NOTE - Children over 18yo will be ‘dependant’ if still in full time education (i.e. university).

What is the basic formula for calculating dependancy loss under the 1976 Act?

Multiplicand x Multiplier = ‘£___’

Identify multiplier by reference to ‘Ogden Tables’.

What is the multiplicand figure under the 1976 Act comprised of?

Deceased’s net annual earnings + value of job perks + value of services provided.

Deduct expenses on themselves.

25% for married person with kids.

33% if deceased’s kids grown up (i.e. no longer dependent).

How is the multiplier figure arrived at under the 1976 Act?

Depends on who is claiming.

Wife - Expected to recover until husband retires (i.e. long period).

Grandmother - Expected to recover for remaining life expectancy (i.e. 15 years if 70yo).

True or False: The Courts take into account the amount the dependants are likely to inherit from the deceased into their calculations.

False.

Will / intestacy not included in assessment.

Who is the ‘damages for bereavement’ under the 1976 Act limited to?

How much is it worth?

• Wife, husband or CP;

• Parents of minor child (never married / CP);

• Cohabiting partner (living same house, >2 years, living as if spouse / CP).

Fixed one-off sum of £15,120.
Both parents entitled? Split award.

*NOTE - Children are excluded from this.