plaintiff (P), 51 year old, inhaled asbestos causing mesothelioma
evidence at trial gave P's life expectancy as 1 yr
how should future loss of earnings be calculated?
Court of Appeal: future loss of earnings should be assessed on basis of 1 yr (multiplier)
House of Lords: unjust outcome as prior to inhalation of asbestos P would have been expected to work until 65 yrs old (further 14 yrs)
Lord Wilberforce: .. Future earnings are of value to [the plaintiff] in order that he may satisfy legitimate desires... the amount to be recovered in respect of earnings in the 'lost' years should be after deduction of an estimated sum to represent the victim's probable living expenses during those years...
if C's life expectancy shortened by negligence, loss of earnings can be recovered for lost years
subject to deduction representing an amount that C would have spent on himself: 25% (if married with dependent children) or 33%(no dependants), % may be altered on facts
two- stage calculation:
multiplicand X multiplier (proportion for years claimant will survive)
multiplicand (reduced by amount claimant would have spent on himself) X multiplier (remaining proportion: lost years)
= future loss of earnings
Other considerations in loss of earnings calculations
in addition to tax, national insurance & pension contributions, further deductions from loss of earnings claim:
sums paid to C by employer under legal obligation (statutory sick pay). tax rebates or tax holidays received due to C not receiving full salary, redundancy payments received by C, deductions for daily living expenses saved during hospital stays (under
Administration of Justice Act 1982 S5)
sums C may have received which do not need to be deducted: ex-gratia payments made by his employer (if employer not tortfeasor), state retirement pension or insurance monies received
Loss of earnings of children
courts have taken approach of looking at C's family circumstances to determine future loss of earnings
Connolly v Camden & Islington Area Health Authority  3 All ER 250
P was injured at 5 yrs old & would never be able to earn a living
how should loss of earnings be calculated?
court used parent's earnings as an indicator of P's earning capacity
Cassel v Riverside Health Authority  PIQR Q168
P, an 8 yr old, injured at birth & not able to work in his lifetime
how should loss of earnings be calculated?
Court of Appeal: used multiplicand over double national average wage, based on P's family history (high academic achievers & successful professionals)
Rose LJ: .. [the plaintiff is likely to possess] legal, artistic and entrepreneurial genes...
using family circumstances can be seen as unfair, courts have developed an alternative method
Croke v Wiseman  1 WLR 71
court used the national average wage to calculate child's loss of future earnings
C may claim for any medical expenses (including cost of adaptations or aids & travel expenses)
pre-trial: available to court & easily totalled, awarded as special damages
post-trial calculation: annual cost of treatment (multiplicand) X number of years treatment will be required (multiplier), awarded as general damages
S2(4): In an action for damages for personal injuries... there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977...
Third party losses
if C incapacitated may need carer or help with housekeeping, provided by third party
C can recover value of services provided by third party
Schneider v Eisovitch  2 QB 431
P hospitalised after an accident in France & two family members travelled assist her
could the family member's expenses be recovered?
expenses could be recovered: expenses were reasonably necessary as a result of the accident & were also for reasonable amounts
if the services are provided by defendant (D) then the cost cannot be recovered
P, was 6 yrs old at time he sustained injuries & required care from his mother & aids
how should P's loss be valued?
P's loss is the need for the items & should be valued at proper & reasonable cost of supplying those needs
Megaw LJ: .. [the plaintiff's] loss is the existence of the need for... those nursing services... [the plaintiff] is entitled to recover damages in respect of the fair and reasonable cost of the special attention, necessitated by the defendant's wrongdoing...
P suffered several minor injuries & badly broken leg, which required numerous operations & he did not regain proper use of his leg
how should interest be calculated?
court explained principle underlying interest payments & set out guidelines for interest awards
.. Interest should not be awarded as compensation for the damage done. It should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him...
.. special damages should be dealt with on broad lines... In all ordinary cases we should have thought it would be fair to award interest on the total sum of special damages from the date of the accident until the date of trial at half the rate allowed on the other damages...
.. [for non pecuniary losses] he should be awarded interest on the compensation payable. But such interest should not run from the date of the accident: for the simple reason that these misfortunes do not occur at that moment, but are spread indefinitely into the future: and they cannot possibly be quantified at that moment, but must of necessity be quantified later.... interest on this item (pain and suffering and loss of amenities) should run from the date of service of the writ to the date of trial. This should stimulate the plaintiff's advisers to issue and serve the writ without delay - which is much to be desired. Delay only too often amounts to a denial of justice...
as amended by S6(1) Administration of Justice Act 1982
S32A(1): an order for provisional damages may be made if chance C's condition may seriously deteriorate or serious disease may develop as result of the original tort
S32A(2): provisional damages may be awarded if: (a) if the judge awards the damages at trial as if the disease or deterioration will not occur and (b) C returns to court for further award of damages because the specified deterioration or disease occurs
Cs exposed to asbestos due to Ds' negligence & developed pleural plaques
pleural plaques have no symptoms & do not cause other asbestos related diseases
but may indicate presence of fibres in the lungs, which independently cause life threatening diseases
Cs suffered severe anxiety & depression
could provisional damages be awarded?
House of Lords: provisional damages could not be awarded where C failed to establish a cause of action
Lord Hoffman: .. Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account...
periodical payments provide more flexible way of paying damages (payments made at regular fixed intervals based on C's current circumstances
avoids difficulties of C investing lump sum badly & makes court's assessment easier as future costs do not need to be predicted
however, periodical payments carry huge administrative costs & leave Ds & insurers uncertain about their liability
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