Damages:
Commonly Available.
Note: only commonly available for personal injury. Calculating damages for property or economic harms is much easier than personal injury.
Purpose of the Damages Remedy:
Compensatory Damages:
Compensatory damages are always available.
Sometimes the claimant will sue for the principle of teaching the defendant a lesson rather than because of the economic value of the damage. If the damage caused is absolutely minimal, then the claimant will receive nominal damages.
Aggravated Damages:
These damages are occasionally available when the way the defendant committed the tort intensified the harm caused to the claimant.
EG: racially motivated assault.
Exemplary / Punitive Damages:
Exceptionally, punitive damages may be available to punish the defendant for their conduct and make an example of them. Usually though, tort law is not used as a means of punishment; that is the role of the criminal law.
Conditions for Punitive Damages: [1]
A statute expressly authorises their use.
The tort committed includes oppressive, arbitrary or unconstitutional acts of governmental agents.
The defendant’s conduct was calculated to make a profit for themselves.
In Broome v Cassell, Denning MR commented that he could not find the reasoning behind the exceptions generated in Rookes.
In Kuddus v Leicestershire Police, the court reaffirmed the conditions set in the judgement of Rookes.
Note: punitive damages more readily available in the US.
Nature of Award:
Damages can only be claimed once, except if the defendant performs a new tort. This is administratively efficient for the courts (they do not have to revisit the same cases again and again), but makes the calculation of damages complicated.
Lump-sum Payment:
Usually, damages are paid as a lump-sum to the claimant.
Periodical Payment:
Exceptionally, the defendant can be made to pay the total amount owed over a period of time. [2] This spaces out payment and can be beneficial to both the claimant and the defendant in some cases.
Measurement of Damages:
The aim is to compensate for the loss experienced by the claimant, not for the gravity of the tort committed by the defendant.
‘Damages Paradox’: Sometimes a more serious injury can result in a smaller damage award.
EG: in an accident caused by D, death is less harmful to C themselves than living with a severe disability or impairment.
Pecuniary Losses:
Pecuniary losses that involve a monetary loss.
Claiming for these losses is generally focused on medical expenses and loss of earning capacity. [3]
This includes ‘lost years’ [4] and interest on this. [5] Deductions can be made for life expenses, ‘vicissitudes of life’, the added value of the lump sum and other benefits received. However, deductions are not made where the claimant receives a payment by a benevolent third party, [6] payment from an insurer or because they received their medical treatment through the NHS. [7]
The amount granted is determined by the Ogden Tables. [8]
Non-Pecuniary Losses:
Non-pecuniary losses do not involve a monetary loss.
Claims are usually focused on the pain and suffering caused to the claimant or their loss of amenity. Usually awarded together under a Pain-Suffering-Lost-Amenity (PSLA) award.
Test:
Subjective test requiring objective proof.
Mere thought / fear of death is not covered, except where it amounts to psychiatric harm.
Usually, £330k maximum award.
Effect of Death:
The Claimant’s Death:
The claimant’s claim persist even if they die. The estate may bring the claim on behalf of the claimant.
Damages cannot be claimed for loss of income for the claimant for time after their death. However, ‘lost years’ income can be included. The estate’s right to claim is more restrictive than if the claimant were alive and suing themselves.
The estate cannot claim for punitive damages.
3rd Parties / Dependants:
Under the old law, the claimant’s death cannot be a cause of action for others. Now, the claimant’s dependants may sue for loss of support if the claimant would have had a claim in tort, had they not died. [9]
Dependants include spouses, civil partners, children etc. [10]
Bereavement Damages:
Only for spouses / partners and parents of unmarried minors. [11]
Maximum claim around £12k.
Loss of Support:
Dependants may sue for the ‘reasonably expected pecuniary benefit from the continuation of the claimant’s life’. [12]
Calculation is from the date of the trial, not death. [13]
The Defendant’s Death:
Under the old common law, the defendant’s death extinguished any claims against them. Since statute changed this, tort claims (except for defamation) survive against the defendant’s estate. [14]
Other Remedies:
Injunction:
Occasionally Available.
Self-help:
Exceptionally Available.
The claimant doing things themselves to remedy the issue.
EG: throwing fallen branch back into neighbour’s garden (trespass).
Resources:
References:
[1] Rookes v Barnard (No1) [1964] AC 1129 [2] Damages Act 1996; Courts Act 2003 [3] Loss of earning capacity = annual net loss x earning life expectancy [4] Pickett v British Rail [1980] AC 136 [5] Interest Rate usually set at 2.5% (since 2001) [6] EG: a charity / fundraiser [7] Law Reform (Personal Injuries) Act 1948 [8] Ogden Tables (8th ed., 2020) [9] Fatal Accidents Act 1846 and 1976 [10] Fatal Accidents Act 1976 s1(3); Administration of Justice Act 1982 [11] Fatal Accidents Act 1976 s1A(2); Smith v Lancashire Teaching Hospitals NHS Trust [2017] EWCA Civ 1916 [12] Franklin v South Eastern Railway (1858) 3 H&N 211 [13] Knauer v Ministry of Justice [2016] UKSC 6 [14] Law Reform (Miscellaneous Provisions) Act 1934 s1
Cases Mentioned:
Broome v Cassell [1971] 2 QB 354
Kuddus v Leicestershire Police [2002] 2 AC 122
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