Damages

Purpose of Damages Compensatory – put C in the position he would have been in had the negligent event not occurred. This can include actual losses already incurred and future losses Not concerned with punishing D C not expected to profit from the award of damages C expected to mitigate his loss – minimising the loss by taking reasonable action E.g – replacing a car that has been written off as soon as possible, rather than hiring a car for many weeks Amount of damages can be reduced if C is partly responsible for his losses – known as contributory negligence 2 types of losses: Pecuniary (financial) Non-pecuniary (no financial value) 2 types of damages: Special damages General damages

Special Damages Financial losses incurred up to the date of trial Losses must follow from the negligent event Can all be given an exact figure E.g. medical expenses e.g. prescription fees and hospital charges E.g. loss of earnings up until the date of trial: If C is salaried and has sick pay arrangements that don’t cover his full pay, C gets the difference (so that he doesn’t end up making a profit) If C has had irregular overtime or works for varying hours each week, calculation is less clear – they would have to look at the history of his earnings – usually average for the previous 26 weeks’ earnings Future loss of earnings NOT part of special damages E.g. damage to goods – repairing a car, replacing ruined clothes – easy to calculate – evidence of cost from receipts Written off car – market value before the accident

General Damages - Principles Anything that does not have an easily quantifiable figure 3 main areas: Pain, suffering and loss of amenity Future medical care and personal assistance Loss of future earnings

General Damages - Pain, Suffering and Loss of Amenity Very difficult to calculate Include physical and mental suffering Loss of amenity - reduction in quality of life – effect on everyday activities like being able to do the housework, performing personal care activities, (washing, shaving etc.), playing sport, taking part in recreation, driving. Judicial Studies Board – lays down guidelines – allows a general consistency in approach and helps Cs and Ds settle the claim without needing to go to court. E.g.: Infertility in a woman who already has children - £10,000-20,000 Moderate knee injury - £8,000 - £14,750 Total loss of sight in one eye - £27,000 - £30,000

General Damages - Pain, Suffering and Loss of Amenity – Factors the Court will Consider Factors court will consider when making the overall calculation: Time spent in hospital and number of treatments Whether injury is temporary or permanent Loss of expectation of life – how much shorter C’s life is likely to be Loss of quality of life – how much worse C’s life is as a result of accident Inability to have children and loss of marriage prospects Cosmetic surgery and the effect this has on C Psychological and emotional damage e.g. depression Continuing pain and discomfort, greater likelihood of serious disease later (may be an award of provisional damages with further damages awarded later with the onset of the disease)

General Damages - Future Medical Care and Personal Assistance Personal assistance – follows on from the concept of the inability to look after oneself fully Member of C’s family may become the carer and lose earnings as a result In such cases there is usually a claim for compensation in respect of the care provided to C by family or friends free of charge – money would be used for the carer Giambrone v JMC Holidays – many people staying at a hotel in Majorca suffered food poisoning, many of who were children. Their parents were successful in claiming damages for the extra care they had to carry out – award of damages can be made for care even with relatively minor cases, particularly when the victim is a child

General Damages – Loss of Future Earnings Can be very difficult to predict Depends on evidence that can be provided Many firms offer forensic and investigative services who become expert witnesses in such cases Many cases use the following formula: These are not always accurate and benefit some more than others: Cs who die before the end of the anticipated period would benefit Young people on low salaries likely to lose out C’s net annual loss Number of earning years left Damages for future loss of earnings

e.g. Andrew turns from a side road on to a main road without stopping. Beth is driving along the main road and Andrew crashes into her car. Beth suffers a broken leg and her car is badly damaged. Beth who is self-employed, is unable to work for two months and she is left with a limp and can no longer enjoy her hobby of line dancing Special Damages: Cost of repair of car £2,630 Cost of replacing Beth’s broken glasses £220 Loss of two month’s earnings £3,500 General Damages: Compensation for pain and suffering £90,000 and loss of amenity due to the limp Total Award: £96,350

Method of Payment – Lump Sums Traditionally all damages were paid as a lump sum – C could receive his payment and did what he wished with it Lump sum could be invested and earn interest – would give C more than he would have earned had he not been injured. Lump sums appropriate for loss of or damage to goods Less appropriate for payments which represent a regular income that C will need during his life

Method of Payment – Structured Settlements Damages Act 1996 Usually only used when General Damages would be a very large amount Usually paid by D’s insurer Once a lump sum figure is agreed, some of that sum takes the form of periodic payments “structured” to meet C’s individual needs The lump sum, or part of it, is spent getting an annuity from a financial institution who will then make the periodic payments (e.g. monthly). These payments are guaranteed to rise with inflation and continue for the rest of C’s life Advantages: Greater certainty and security compared to lump sum C does not have to manage lump sum or pay someone to manage it Especially good when victim is a child or severely injured

Possible Questions Assume X was found liable in negligence. Explain how the court would calculate an award of damages to Y (8)