Remedies for negligence
COMPENSATORY DAMAGES
Some monetary awards, some non-monetary awards, injunctive remedies
Damages put injured party in same position would have been if not sustained the tort
Restitutio in integrum= 100% compensation repair in full damage done by the tort
For non-pecuniary damages (non-financial), full not possible to achieve before and after injury
Contributory negligence reduces damages, operates for pecuniary and non-pecuniary awards
has big effect on serious injury claims as future income compensation reduced
Lim v Camden Health Authority [1980]: claimant suffered cardiac arrest when undergoing minor
surgery and was left with severe injuries, she was barely responsive HOL held award of £20k for
pain, suffering and loss of amenity as apart of a larger award for lost earnings + caring costs
PECUNIARY LOSS (personal injury)
Get accelerated receipt: when give lump sum would have a lot in one go, so court says invest
money as has to be used for rest of life
Periodical payments s.2 Damages Act 1996 –payment vary to change in circumstances
Loss of earnings: how much money lost each year multiply by number of years for lump sum
awards for future losses – considers promotions, pensions etc
Lost earnings and expenses before trial
Claimant should be compensated in full for any wages or other earnings lost while awaiting trial +
any expenses reasonably incurred – e.g. travel + care costs (cost of private care can be recovered)
Claimant must mitigate their loss by acting reasonably
Future loss of earnings – there are issues of uncertainty
Uncertainty of what will happen to claimant, how long will live, what work, if any, can claimant be
able to secure, will conditions approve or deteriorate, could have got promotion, pension
See annual loss and promotion prospects lost from accident + number of years of lost earnings
Lost life expectancy
Tort shortens claimant’s life expectancy but as life expectancy is shortened, not now need that
income but tort will reduce the estate for the detriment of those inheriting
Pickett v British Rail [1980]
Aged 51, plaintiff contracted mesothelioma through employer’s breach of duty, life expectation
reduced to only 1year, otherwise expected to work until 65 held recover earning made during lost
years, deductions for living expenses during these years
Disadvantage in the job market
Can make an addition to damages, called Smith v Manchester award, to reflect claimant’s future
‘disadvantage in job market' consider education, employment at time of trial + disability
Dixon v John [2004]: university student seriously injured in road accident, aged 20, suffered brain
damage, personality disorder made unemployable, and fact of his degree would have secured good
job, multiplicand increased with percentage change of promotions in staged increases
1
, Expenses
Voluntary provision of care: relatives/friends provide care, leave paid employment damages
reflect this, but this is for injured party, caregiver has no right to claim against tortfeasor but
injured party does ‘hold on trust’ for care-giver, but still dependent on injured to bring action
Donnelly v Joyce [1974]: claimant 6yr old, mother gave up work to care COA held claimant could
claim for cost of services as his own claim, cost of services valued of mother’s loss of earnings
Local authority care: not need to use NHS, can choose private medical care, claims for private care
are very high but local authority under statutory obligation to provide such care can choose
DEATH AND DAMAGES – action by deceased’s estate – AJA 1982
AJA 1982 abolished recovery of damages for ‘loss of expectation of life’ in its own right – but can
increase general damages if reduced life expectancy added to suffering
All cause of action shall survive for benefit of estate, apart from defamation + bereavement
(under s.1A Fatal Accidents Act 1976) shall not survive for benefit of estate
Reductions for contributory negligence apply to claim by the estate
CLAIMS FOR DEATH OF ANOTHER – Fatal Accidents Act 1976
s.1 Fatal Accidents Act 1976 – fall into certain category of relative
S.1= causation of action by ‘DEPENDENTS’ of deceased for loss of dependency, pecuniary
S.1A defines cause of action for BEREAVEMENT, non-pecuniary, typical sum= £11,800
Damages can be reduced on contributory negligence
Can get grievance damage if spouse or parent
Dependent= wife/husband, former wife/husband, civil partner or former civil partner or any
person who was living with the deceased in the same household immediately before death or has
been living with deceased for at least 2yrs, any parent or ascendant, any person who was treated
by deceased as his parent, child or other descendent, any person who was treated as a child in
relation to that family, brother, sister, uncle
s.1A Fatal Accidents Act 1976: Bereavement
Claim for damages for bereavement shall only be for benefit of – wife/husband, where was a
minor who was never married for legitimate parents or illegitimate mother
Damage will be £12,980
Where damages benefit both parents, shall be divided equally
Bereavement damages a bit low
Swift v Secretary of State for Justice [2013]: claimant was living with deceased when he was killed at
by accident at work, they did not cohabit for 2yrs as required by s.1, son born after death of father
was able to claim as dependent, but mother could not she argued this violated HR COA held
although some results may be unjust, it was not violation of HR2yrs for permanence
Issues with Dependency damages (s.1)
Own right to claim, only exists if deceased, action if injured rather than killed
1.Claim of deceased was time-barred under Limitation Act at time of death, then dependents have
no action, if not time-barred have 3yrs from death to bring claim (Limitation Act 1980, s.12(2))
2.If damages are to be reduced by contributory negligence, damages under this Act also reduced
3.Problems where more than 1 tortfeasor is liable for harm, and deceased settled against 1 party
Jameson v CEGB [2000]: few days before his death from mesothelioma, agreed payment of £80k
from former employer, full value of claim was much larger than £80k, his widow bought action
2
COMPENSATORY DAMAGES
Some monetary awards, some non-monetary awards, injunctive remedies
Damages put injured party in same position would have been if not sustained the tort
Restitutio in integrum= 100% compensation repair in full damage done by the tort
For non-pecuniary damages (non-financial), full not possible to achieve before and after injury
Contributory negligence reduces damages, operates for pecuniary and non-pecuniary awards
has big effect on serious injury claims as future income compensation reduced
Lim v Camden Health Authority [1980]: claimant suffered cardiac arrest when undergoing minor
surgery and was left with severe injuries, she was barely responsive HOL held award of £20k for
pain, suffering and loss of amenity as apart of a larger award for lost earnings + caring costs
PECUNIARY LOSS (personal injury)
Get accelerated receipt: when give lump sum would have a lot in one go, so court says invest
money as has to be used for rest of life
Periodical payments s.2 Damages Act 1996 –payment vary to change in circumstances
Loss of earnings: how much money lost each year multiply by number of years for lump sum
awards for future losses – considers promotions, pensions etc
Lost earnings and expenses before trial
Claimant should be compensated in full for any wages or other earnings lost while awaiting trial +
any expenses reasonably incurred – e.g. travel + care costs (cost of private care can be recovered)
Claimant must mitigate their loss by acting reasonably
Future loss of earnings – there are issues of uncertainty
Uncertainty of what will happen to claimant, how long will live, what work, if any, can claimant be
able to secure, will conditions approve or deteriorate, could have got promotion, pension
See annual loss and promotion prospects lost from accident + number of years of lost earnings
Lost life expectancy
Tort shortens claimant’s life expectancy but as life expectancy is shortened, not now need that
income but tort will reduce the estate for the detriment of those inheriting
Pickett v British Rail [1980]
Aged 51, plaintiff contracted mesothelioma through employer’s breach of duty, life expectation
reduced to only 1year, otherwise expected to work until 65 held recover earning made during lost
years, deductions for living expenses during these years
Disadvantage in the job market
Can make an addition to damages, called Smith v Manchester award, to reflect claimant’s future
‘disadvantage in job market' consider education, employment at time of trial + disability
Dixon v John [2004]: university student seriously injured in road accident, aged 20, suffered brain
damage, personality disorder made unemployable, and fact of his degree would have secured good
job, multiplicand increased with percentage change of promotions in staged increases
1
, Expenses
Voluntary provision of care: relatives/friends provide care, leave paid employment damages
reflect this, but this is for injured party, caregiver has no right to claim against tortfeasor but
injured party does ‘hold on trust’ for care-giver, but still dependent on injured to bring action
Donnelly v Joyce [1974]: claimant 6yr old, mother gave up work to care COA held claimant could
claim for cost of services as his own claim, cost of services valued of mother’s loss of earnings
Local authority care: not need to use NHS, can choose private medical care, claims for private care
are very high but local authority under statutory obligation to provide such care can choose
DEATH AND DAMAGES – action by deceased’s estate – AJA 1982
AJA 1982 abolished recovery of damages for ‘loss of expectation of life’ in its own right – but can
increase general damages if reduced life expectancy added to suffering
All cause of action shall survive for benefit of estate, apart from defamation + bereavement
(under s.1A Fatal Accidents Act 1976) shall not survive for benefit of estate
Reductions for contributory negligence apply to claim by the estate
CLAIMS FOR DEATH OF ANOTHER – Fatal Accidents Act 1976
s.1 Fatal Accidents Act 1976 – fall into certain category of relative
S.1= causation of action by ‘DEPENDENTS’ of deceased for loss of dependency, pecuniary
S.1A defines cause of action for BEREAVEMENT, non-pecuniary, typical sum= £11,800
Damages can be reduced on contributory negligence
Can get grievance damage if spouse or parent
Dependent= wife/husband, former wife/husband, civil partner or former civil partner or any
person who was living with the deceased in the same household immediately before death or has
been living with deceased for at least 2yrs, any parent or ascendant, any person who was treated
by deceased as his parent, child or other descendent, any person who was treated as a child in
relation to that family, brother, sister, uncle
s.1A Fatal Accidents Act 1976: Bereavement
Claim for damages for bereavement shall only be for benefit of – wife/husband, where was a
minor who was never married for legitimate parents or illegitimate mother
Damage will be £12,980
Where damages benefit both parents, shall be divided equally
Bereavement damages a bit low
Swift v Secretary of State for Justice [2013]: claimant was living with deceased when he was killed at
by accident at work, they did not cohabit for 2yrs as required by s.1, son born after death of father
was able to claim as dependent, but mother could not she argued this violated HR COA held
although some results may be unjust, it was not violation of HR2yrs for permanence
Issues with Dependency damages (s.1)
Own right to claim, only exists if deceased, action if injured rather than killed
1.Claim of deceased was time-barred under Limitation Act at time of death, then dependents have
no action, if not time-barred have 3yrs from death to bring claim (Limitation Act 1980, s.12(2))
2.If damages are to be reduced by contributory negligence, damages under this Act also reduced
3.Problems where more than 1 tortfeasor is liable for harm, and deceased settled against 1 party
Jameson v CEGB [2000]: few days before his death from mesothelioma, agreed payment of £80k
from former employer, full value of claim was much larger than £80k, his widow bought action
2
