Tort Law - Remedies in Tort
General damages: damages arising from non-financial losses.
- E.g. non-pecuniary (pain and suffering, loss of amenity), post-trial medical
expenses and loss of earnings
Special damages: damages arising from actual financial losses incurred as a direct
result of the incident.
- E.g. pre-trial medical expenses and loss of earnings
FOLLOW RELEVANT ROUTE BETWEEN NON-FATAL & FATAL CLAIMS
NON-FATAL CLAIMS
[STEP 1] General principles of damages in tort
The aim of damages in tort is to put [INSERT C] in the position they would have been in
if the tort had not been committed, so far as money is able to do so in relation to their
personal injuries.
- Where a tort is actionable per se, C does not need to prove any actual damage
or loss. If there is no actual damage or loss, C is awarded nominal damages for
a token amount of loss.
Mitigation of loss:
[INSERT C] has a duty to take reasonable steps to mitigate their loss, and should not
profit from the incident. [INSERT C] has mitigated their losses / see below.
One action rule:
[INSERT C] may bring only one claim based on [INSERT THIS SCENARIO/INCIDENT],
so one lump sum is awarded for all past and future losses.
- See limited exceptions of provisional damages and periodic payments
[STEP 2] Non-pecuniary losses
Non-pecuniary losses are those not capable of being calculated in money terms.
The two heads of non-pecuniary losses are:
1) Pain and suffering (Wise v Kaye);
, 2) Loss of amenity (West v Shepherd).
Pain and suffering
A subjective test is used to award damages for pain and suffering (Wise v Kaye).
[INSERT C] must be aware of their injuries, so cannot claim for a period where they
were unconscious.
[INSERT C’s] award will be increased to cover [INSERT BELOW RELEVANT ON THE
FACTS]
- Whether the injury was to a dominant or non-dominant limb;
- Number of operations required;
- Recovery time;
- The permanence of any disability;
- Scarring.
- It also covers the anguish of knowing that your life expectancy has been
shortened because of the accident (s.1(1)(b), Administration of Justice Act 1982).
Damages for pain and suffering cover past, present, and future pain, physical and
mental anguish, the fear of future surgery etc.
Loss of amenity
Damages for loss of amenity aim to compensate C for the loss of the enjoyment of life,
and covers a wide range of loss.
An objective test is used to award damages for loss of amenity (West v Shepherd).
[INSERT C] may claim for periods where they were unconscious / unaware of their own
loss of enjoyment of life.
[INSERT C’s] award will be increased to cover [INSERT BELOW RELEVANT ON THE
FACTS]
- loss of movement/sight/smell/marriage prospects
- inability to pursue hobbies
Quantification of non-pecuniary damages
General damages: damages arising from non-financial losses.
- E.g. non-pecuniary (pain and suffering, loss of amenity), post-trial medical
expenses and loss of earnings
Special damages: damages arising from actual financial losses incurred as a direct
result of the incident.
- E.g. pre-trial medical expenses and loss of earnings
FOLLOW RELEVANT ROUTE BETWEEN NON-FATAL & FATAL CLAIMS
NON-FATAL CLAIMS
[STEP 1] General principles of damages in tort
The aim of damages in tort is to put [INSERT C] in the position they would have been in
if the tort had not been committed, so far as money is able to do so in relation to their
personal injuries.
- Where a tort is actionable per se, C does not need to prove any actual damage
or loss. If there is no actual damage or loss, C is awarded nominal damages for
a token amount of loss.
Mitigation of loss:
[INSERT C] has a duty to take reasonable steps to mitigate their loss, and should not
profit from the incident. [INSERT C] has mitigated their losses / see below.
One action rule:
[INSERT C] may bring only one claim based on [INSERT THIS SCENARIO/INCIDENT],
so one lump sum is awarded for all past and future losses.
- See limited exceptions of provisional damages and periodic payments
[STEP 2] Non-pecuniary losses
Non-pecuniary losses are those not capable of being calculated in money terms.
The two heads of non-pecuniary losses are:
1) Pain and suffering (Wise v Kaye);
, 2) Loss of amenity (West v Shepherd).
Pain and suffering
A subjective test is used to award damages for pain and suffering (Wise v Kaye).
[INSERT C] must be aware of their injuries, so cannot claim for a period where they
were unconscious.
[INSERT C’s] award will be increased to cover [INSERT BELOW RELEVANT ON THE
FACTS]
- Whether the injury was to a dominant or non-dominant limb;
- Number of operations required;
- Recovery time;
- The permanence of any disability;
- Scarring.
- It also covers the anguish of knowing that your life expectancy has been
shortened because of the accident (s.1(1)(b), Administration of Justice Act 1982).
Damages for pain and suffering cover past, present, and future pain, physical and
mental anguish, the fear of future surgery etc.
Loss of amenity
Damages for loss of amenity aim to compensate C for the loss of the enjoyment of life,
and covers a wide range of loss.
An objective test is used to award damages for loss of amenity (West v Shepherd).
[INSERT C] may claim for periods where they were unconscious / unaware of their own
loss of enjoyment of life.
[INSERT C’s] award will be increased to cover [INSERT BELOW RELEVANT ON THE
FACTS]
- loss of movement/sight/smell/marriage prospects
- inability to pursue hobbies
Quantification of non-pecuniary damages
