1. Damages

2. 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

3. 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

4. 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

5. 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

6. 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)

7. 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

8. 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

9. 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

10. 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

11. 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

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