Remedies - damages

What is the difference between special and general damages?

Special damages are quantifiable damages that the victim has incurred at the time of trial

General damages are non-quantifiable damages, such as pain and suffering and usually refer to future losses.

What is the rule in relation to damages for pain and suffering?

The claimant must be subjectively aware of their pain and suffering in order to claim for it. So a claimant in a coma cannot claim for this.

What is the rule in relation to damages for loss of amenity?

This relates to a lower quality of life because of the tort.

A formerly active person who suffers a disabling injury will suffer a greater loss than a sedentary person so will be awarded more.

A person unconscious can recover.

What medical expenses can be recovered?

Any - including private medical care

Can the cost of a carer be recovered?

Any carers bills can be recovered - the claimant must claim on behalf of the carer and hold it on trust for them.

Relatives can also be compensated but only up to the amount a commercial carer would have charged.

How is loss of earnings post trial calculated?

This is a lump sum calculated to via the multiplier method:

Net annual loss of earnings (adjusted upwards to include bonuses and the possibility of promotion, but not including inflation) MULTIPLIED by

period of loss from trial date

This is adjusted at a discount rate of -0.25%

What if the victim has had their life expectancy reduced and cannot work as long anymore?

This is the loss of earnings (lost years) method.

Multiply annual salary by years lost.

There is a deduction that needs to be taken into account to include money that the claimant would have spend on themselves.

25% if married with children

33% if the claimant had no dependants

A young child cannot apply for this award as it is too speculative

What is loss of earnings capacity damages?

Damages are awarded where the claimant is able to work in their original job but is so damaged that they are disadvantaged by applying for other jobs or less likely to get promoted.

The award is typically up to two years of net lost earnings.

What deductions are made to an award of damages?

Tax and national insurance contributions are deducted.

If state benefits are received for the tort (disability allowance), this will also be deducted.

Other insurance payments, money given to charity or family is never deducted.

What are the rules for damages on death under the Law Reform Act?

This enables the victims estate to either continue a claim or bring a claim.

Recoverable:

• survival period losses = losses that occurred between the time the tort was committed and death

• reasonable funeral expenses

• property damage

What are the rules for a claim under the Fatal Accidents Act?

Only dependants can claim here who are individuals who were financially dependent on the victim (doesn’t include cohabiters of less than 2 years).

What can be recovered:

• Loss of dependency (annual salary x period of dependency. This is reduced by 25% if married with children, and 33% if childless) - period of dependency would stop when a child reaches 18

• Bereavement Support Payment (spouse, civil partner, cohabitee of more than 2 years and parent of a minor) - up to £9800 in instalments

• Reasonable funeral expenses

• Loss of value of services too, such as DIY.