Damages: Assessment

[Flash Card 1 of 5]

• damages: principle compensation / restore C position would have been in if D's negligence not occurred

Pecuniary expenses

• pecuniary expenses: losses capable calculation in money terms / pre-trial & post-trial / any reasonable loss

Pre-trial loss of earnings

• special damages: precise figure pre-trial loss of earnings / overtime or regular benefits included
• pre-trial loss of earning is net earnings (after tax & NI) (British Transport Commission v Gourley [1956])
• pension deductions / normally at source /deducted from gross earnings (Dews v National Coal Board [1987])

Future loss of earnings

• general damages: not capable precise calculation / awarded: if unable to work again or if earning potential reduced / lump sum at trial
• multiplicand: C's net annual loss: gross annual loss up to trial / modified by any potential increase / tax NI & pension deducted
• multiplier: period of future loss: working life expectancy (retirement age) / conversion: 2.5% in Ogden tables (actuarial) / avoid overcompensation
• multiplicand X multiplier = future loss of earnings

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Damages: Assessment

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Pecuniary expenses

Future loss of earnings

Lost years

• if C's life expectancy shortened / future loss of earnings are adjusted
• 1yr life expectancy / CoA: 1yr multiplier / HoL: unjust / prior expect work until 65 (14yrs) / value to P: satisfy legitimate desires / can recover for lost yrs (Pickett v British Rail [1980])
• subject to deduction / amount C would have spent on himself: 25% (married with dependent children) / 33%(no dependants) / % may alter on facts
• 2 stage calculation: multiplicand X multiplier (proportion yrs C will survive) + multiplicand (deduct spent on himself) X multiplier (remaining proportion: lost years) = future loss of earnings

Loss of earnings calculations

• deductions: tax / NI / pension / employer obligatory payments / tax rebates due to no full salary / living expenses during hospital stay (Administration of Justice Act 1982 S5) / redundancy
• not deducted: employer ex-gratia payments (if not D) / state pension / insurance monies

Loss of earnings of children

• family circumstances (Connolly v Camden & Islington HA [1981]) / entrepreneurial genes (Cassel v Riverside HA [1992])
• national average wage (Croke v Wiseman [1982)

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Damages: Assessment

[Flash Card 3 of 5]

Pecuniary expenses

Medical expenses

• including: adaptations / aids / travel expenses / pre-trial: easily totalled / special damages / post-trial: annual cost of treatment (multiplicand) X yrs treatment required (multiplier) / general damages
• C may opt for private healthcare / S2(4) Law Reform (Personal Injuries) Act 1948 (Poh Choo v Camden & Islington HA [1979])

Third party losses

• if C incapacitated / may need carer or housekeeper / C can recover value of services provided by third party
• C hospitalised France / family travel expenses reasonable (Schneider v Eisovitch [1960])
• if services provided by D / cannot be recovered / contrary public policy (Hunt v Severs [1994]) / criticised: no obligation C to pay third party
• C's loss: need for items or care / valued at proper & reasonable cost of supply (Donnelly v Joyce [1973])
• value loss of earnings / relative gives up work / actual loss of earnings / ceiling commercial rate (Housecroft v Burnett [1986])

Loss of earning capacity

• if court satisfied: C risk of losing job / can award (Smith v Manchester (1974))
• head of damage cannot be awarded if loss of future earnings is awarded

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Damages: Assessment

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Non-pecuniary expenses

• cannot be mathematically calculated / compensate personal injury as unable to restore C / no quantum: based on facts & case law

Pain & suffering

• past present & future: pain / physical & mental anguish (fear of treatment / anguish of life expectancy shortened)
• subjective test / no claim if C unconscious (Wise v Kaye [1962])

Loss of amenity

• broad head of damage / compensate loss enjoyment of life (senses / marriage prospects & hobbies) / degree of deprivation / lifestyle prior to incident
• objective test / can claim if unconscious (West v Shephard [1964])

Interest on damages

• Senior Courts Act 1981 S35A: interest paid / PI & death damages / exceed £200 / unless special reasons
• principle: interest not compensation / awarded for being kept out money ought to been paid / non-pecuniary from service proceedings to trial / discourage delay (Jefford v Gee [1970])
• special damages interest: half investment rate / accident to trial (Cookson v Knowles [1979])
• non-pecuniary: interest 2% (Wright v British Railways [1983])

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Damages: Assessment

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Provisional damages

• lump sum: over or under compensation / provisional damages avoid risk
• Senior Courts Act 1981 S32A / order: if C's condition may seriously deteriorate or serious disease may develop as result of tort / awarded: if trial damages on basis disease or deterioration not occur / C returns to court for further award as specific occurs
• time limit may be set (Hurditch v Sheffield HA [1989])
• clear & severable risk / continuing deterioration insufficient (Willson v MOD [1991])
• pleural plaques / causation not present / C must establish cause of action (Johnston v NEI; Grieves v FT Everard [2007])

Periodical payments

• paid regular fixed intervals / based C's current circumstances
• advantages: more flexible / avoids C's risk / court assessment more accurate
• disadvantages: huge administrative costs / Ds & insurers uncertain about liability

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