what wuld happen if the claimant is engaged on some illegal and perhaps criminal activity and this is the cause of the unjires sustained? an instinctive answer is that there should be no compensation. Illegality seldom acts as a complete bar to a claim
in some cases the courts have denied liability in the basis of the claiamtns wrogndoing
———- it is shocking to the socneince that the claiamtn should be allowed compensation in the cirsumtances
———– on the facts there is no relevant basis on which the appropriate standared care of could be dteremined
pitts v hunt 1991
revill v newberry 1997
damages are commonest remedy in trot
consideraion on other chapters has been given to remoteness of damage
this is about hwo much the damgs are
calculation is complxed.
possible exam question – to make a general critique of thw way in which damages are assessed for personal injuries
consider it at three evels
1. given the ibjestices of the present system dies it achieve them?
2. should the system be changed sot hat for example the damages will be paid in monthyl installment dpeending on how the claiant circumstancea re at the time of payment?
3. should the sustme for damages be abolsihed and absorved within the social secuiryt system or is it right that victims of tort should be rteated diffwrently form those who suffer injury illenss or eneplpoyument in other ways?
a request to outline the way in whcih damges will be assess for the benefit of indivual claiamnts in problem
here is an example of the level of the detail that may be expected there is an important question of princple about how far tort damages should be integrated with social security payments
it is important to know that the law now allows the state to recover some of what it has paid in benefits but is no necessary to know the detail or mechanism or any difference between different kids of social security payments
1. the priuncipel for the assement of damages for personal insjires ar ein cmmon law with some statoty modificatioon e g in adminsitration of justice atc 1892
and damages act 1996
useful casw to illustare the heads of liability and policy issues at stake
lim poh choo v camden and islington area health authortu 1980
this is the csdse with a ric woman unmarried with no redent s who suffered catostrophic iunjuries that left her intemittentyly ocnscious butith an expcetiation of living for many years
2. the object of the damages is to place the claimant in the postion he or she should have been in it the tort had not occurred
3. compensation is based in what the claiamnt has lost and not on the claiant’s peresent needs
this troubled lord denning in a number of cases such as iun lim poh choo in thet dr lim was given a v large sum of money and nowaday it woud be much alrger. and she could never spend it and much of it would go on her dath udner a will drawn up many eyars before or in intestacy to people who might take no inters in her wlfare in the meantime
4. damages are awarded once and for all as alump sum and the calculation cannot be reopned
there is v limited power to award provisional damages such as damage clcauated at the traiol but only payabel if certaib damage in the claimants condtion occur in the futute
administration fio justice act 1982 and damage act 1996
there is possibility for structured damages
none of these staren orives fir a rwciww if damages if the claimants circumstances change
probably many claimants get too much because their health recovers
or they find well paid work or die
others get too little because their condition is worse than thought
court has to speculate
1. whether the claimant ‘s condition will improve or deteriorate
2. what the claimant’s future would have been if the injuries had not occurred.
THE HEAD OF DAMAGES
damages are calculated under various headngn and then added together taking care tat no sum is counted twiece
a disctinion is drawn between pecuniary and non pecuniairy loss
the former damges are epxresed in money such as being unable to work
non pecuniary damage is not expressed in money
this is paid for what the claimant lost because or tort or for expenditure that the claimant has incurred as a result of tort
the most obvious loss os that of income if the claimant is unable to work for some time or at all or is forced to move to less well paid work
the court has to decided watr the claimant’s prospects are what they would have been if the tort has not occurred
i. HOW DO YOU CALCULATE THE LOSS?
the method used is the multiplier method. the multiplicand is the claimant’s net i e after deductuon of tax etc. – annual income
the multiplier is not the number of years for which there will be no income – that woukd be too generous
imagine a man of 35 earning GBP 30 000 a year and expeted to do so for 30 yeasr
give him GBP 30 000 x 30.
ti give him all this at once would be too much. h should get some each month
right multiplier and multiplicnad and the job is more difficult the younger the claimant is
if the claimain is a child there is no realiable way of guessing job prospectcs
ii WHAT ASSUMPTIONS DO YOU MAKE ABOUT WHAT THE CLAIMANTS WILL DO WITH THE MONEY?
they can keep it or spend it
what are they assumed to do? both courts and parliament have decied to chaneg the assupmttuons and assume a tyical claimant usng the money to make low risk invesmnets with a low reutrn
this unceasese the multiplier
wells v wells 1999
cooke v bristol united healthcare nhs turst 2003
WHAT ASSUMPTIONS SHOULD BE MADE ABOUT THE FUTURE OF MONEY, INTEREST RATES AND SO FORTH
mallett v mcmonagle 1970
iv WHAT SHOULD YOU DO IT THE TORT HAS ALSO REDUCED THE CLAIMANT’S EXPECTATION OF LIFE?
the situation is often misundertsoof.
if at the time of the tort the cliamant was aged 30 but had indpenently of the tort got a termianl illness and was likle y to die in five years then the defena has to compensate for only 5 years economci loss
but if the claiamnt was 30 and had a normal life epxtenacy as well as making him unfot to to workj the tort has reduced his life expteancy to gie year. should the conepation be for lost eanrings during the loss years
we are not talijg about compensation for the loss of life but for loss of earning during those years
house of lords ovetunred the previous law and provided that such lost earings should be compensated. but that sums that the claiamt would have sent on himself should be deducted
pickett v british raikl engineering 1980
WHAT SHOULD BE DONE IF THE CLAIMANT RECEIVES MONEY FROM OTHER SOURCES AS A RESULT OF THE TORT?
typical cases are proceeds of insurance policy – social security payments , ension priovison, voluntary payments by employers or chairtable gits
there are in theory 3 possible solutions
—– these sus ared decucted frm damages payable by the tortfeaser. Snag – the tortfeasor gets the benefits of the victim’s prudence
—– the claimant keeps these other benefits and gets damages in full. snag – the claimnt is overcompensated
——– the tortfeasor pays back to the donors the sums received by the victim from other sources. snag – in many cases the admin costs would be very high.
you will see from your reading of textbooks that all of these soltuins have some part to play
in particular some effots ar now made to see that tortfesors pack back some social secuity oayments to the state, so that the costs of accident fall more on the defendants insurers and less on public funds
such as soecial security – recovery of beenfits – act 1997
parry v cleaver 1970
smoker v london fire and civil defence autghoruty 1991
the claiamtn is entitled to recover the costs resulting from tort
typical examplesa re the cost of medial treatment, future institutional care, adatpion of home and assistance with faily routine
notice 2 issues
—– double compensation must be acoided. this is shown in lim poh choo. the claiamtn was unable to work againm and was cared for in nusring home.
hshe was entitled in principle for the loss pof earnings and cost of care. but the nrusing hom was giving her accomm. foor etc which seh would have been hacing to pay for out of her income if she had not been injured. so part of the costs f ther nrsuj g care had to be decueted to sotp her being overcompnseated
————– sometimes nruisng and supprot care is provied by spuse etc… this person may give up work to care for the victim. it is now settled that the claiant is entutled ti conesntion for the sot of this care. this may be less then the cineome the carer would have gotten. the sumes may be held on trust for the carer
donnelly v joyce 1974
NON PECUNIARY DAMAGE
the claiamtn is also entitled to recove compendation fro pain and suffering and for lss of amenties
ths sum s awared for these losses have for the most part to be conventiona
court of apeal in a seris of case repoted together as
heilv rankin 2001
this increased level of cpnensation
especially in severe case. one of the cases o dealt with was that of kent v griffiths the
the victim is suauly entitle to get private medical treatment and be compensated for it
there are no mechanism that allow the health service in some cases to recover from the tortfeasor the osts of care it has provided o the citm
road traffic NHS charge act 1999
AN ALTERNATIVE APPROACH – STRUCTURED SETTLEMENTS
the approach yo damages just decribed involves the calcualtion of a lump sum sometimes lagre which is then given to the claimant
it is possible for the parties to negotiate an agremen by which periodi paymnets are paid to the victim
they were given a boost when the inland revenue agreed that payaments made to the claiant udner such an agreement caleld a structyed settlement would not be taxed as income
under onvdnetionla netod axtual damages are no taxed bu the citims patys tax on income from invested dmagaes
structyed settlemtns are sanctioned by staturte i dmage act 1996 and in some cases where th victim isa child have to be approved by the court
the cour cannit impise structed stetlement agaunst th ewiwshe sof the aprties
the dmagse calculated in the susua way and the defendat sinsurers use the sums to prchase an annuity frm a firm of insurers specialing in such work
the structure can be made flexible but once in palce cannot be adjusted
there are a number of advanategs and dsisadvanatesg in such arrangement frm the claiamnts point of view the main advanatge is the scruity of knowing what payment will be made in futue byt at the price of lsing the right to control th way money is used
THE EFFECT OF DEATH ON DAMAGES
common law has 2 problems
— a cayse of action in tort lapsed if either party died. this was remedied by the law reform (miscellaneous provisions) act 1934
this allowed most actions to survive and be brought by or against the state of the deceased
an action in defamation is still an exception.
where death was independent of the tort there is no problem
but where the tort caused the death then there are problems in deciding what damages are appropriate
———- the common law did not allow an action by those who were dependent on the deceased for loss of support because their loss was purely economic.
this was changed by parliament by parliament in the 19th century . the details have ben revised on a number of occasions – the present law is in the fatal accident act 1976
in practice substantial damages are payable under the 1976 act rather than the 1934 axt
this can be criticised because te 1976 act s based in a traditional view of the family with the breadwinner on whom the spouse and children are dpenet who must be protected if the breadwinner is killed
THE SURVIVAL OF THE DECEASED’S CAUSE OF ACTION FOR THE BENEFIT OF THE ESTATE
where victim survived the tort for some time then this is the mechanism by which damages suffered by the victim while alive are recovered so that the estsa can sue for damage for loss of earnings , medical expense and pain and suffering between tort and death
where however death is instantaneous little or nothing payable
there is nothing for pain, suffering and loss of amenity
hicks v chief constable of south yorkshire police 19922
there is no recovery for lost future earnings
administration of justice act 1982
THE DEPENDANTS’ RIGHT OF ACTIONS UNDER THE FATAL ACCIDENTS ACT
you should identify the following issues in the application of the act
— what categories of person are able to bring an action as dependants?
— what is a dependent?
— how are a dependant’s damages assessed?