Tort 3: Remedies

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Tort 3: Remedies
2013-04-14 08:59:23
Tort Remedies

Tort 3
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  1. Administration of Justice Act 1982 s1(1)
    Non-pecuniary losses; pain and suffering

    Pain and suffering covers the anguish of knowing your life expectancy has been shortened because of the accident.
  2. Wise v Kaye
    Non-pecuniary losses; pain and suffering

    The test for pain and suffering is a subjective one. C must actually be aware of the injuries to be able to claim for pain and suffering. Therefore, an unconscious C would not be able to recover damages for pain and suffering because he would not be aware of it,
  3. West v Shepherd
    Non-pecuniary losses; loss of amenity

    Unlike pain and suffering, the test for this head of damage is an objective test. C can recover for loss of amenity even for while they are in a coma.
  4. s2(4) Law Reform (Personal Injury) Act 1948
    Pecuniary loss; private medical care

    C cannot be found to have failed to mitigate his loss by paying for private medical treatment rather than obtaining free treatment under the NHS.
  5. Pickett v British Rail Engineering
    Pecuniary losses; the lost years

    Cs whose life expectancy has been shortened by an incident could recover loss of future earnings for lost years.
  6. Schneider v Eisovitch
    Pecuniary losses; future services needed by C

    The law allows Cs to recover the cost of services such as nursing, help with housework, shopping, gardening etc, provided C's need for such services was caused by D's negligence.
  7. Housecroft v Burnett
    Pecuniary losses; future services needed by C

    Where C's spouse (or any other relative etc) has given up paid employment to care for him, C can recover the cost of that care.

    The court held that the starting point for calculating the cost of this was to start with the loss of earnings suffered by the carer. However, the costs could not exceed the commercial rate for providing the services.

    However, the court should consider each case on its facts. For example, if a relative provides full time care for free suffering no loss of wages, the correct valuation should be somewhere between zero and the commercial rate.
  8. Smith v Manchester Corporation
    Pecuniary losses; loss of earning capacity

    Where C faces the risk of losing his job in the near future and being disadvantaged in the job market because of his disability (ie may find another job but less well paid), damages can be made to compensate C for this disadvantage.

    However, this is very speculative and the judge must be satisfied that there is a real risk of C losing his job.
  9. Social Security (Recovery of Benefits) Act 1997
    Pecuniary losses; deductions from damages

    If C receives State benefits as a result of an accident, some account must be taken of the receipt of these benefits.

    Certain benefits will be deducted from C's damages and D will be required to pay this amount back to the State instead.

    Under the Act, benefits can be deducted from only certain kinds of damage suffered by C:

    • - compensation for lost earnings;
    • - compensation for cost of care;
    • - compensation for loss of mobility.
  10. S32A Senior Courts Act 1981
    Pecuniary losses; provisional damages

    In certain situations there is a chance of a serious deterioration in C's injuries and provisional damages may be more appropriate.

    At the trial, the court will assess damages on the basis that C's injuries will not get worse. The judgment will specifically provide that, in the event that the injuries do get worse, C will be entitled to further damages.
  11. Damages Act 1996 s2
    Pecuniary losses; periodic payments

    This allows the courts to award damages for personal injury as periodic payments rather than as a lump sum.
  12. The Law Reform (Miscellaneous Provisions) Act 1934
    Death of C or D

    This Act allows existing causes of action to continue after death. Under s1(1), all causes of action survive the death of either C or D. (Except bereavement damages or defamation)

    A claim by C survives for the benefit of his estate. A claim against D survives against his estate.

    Under s1(2)(a) there can be no claim for loss of income for any period after C's death.

    Under s1(2)(c) of the Act means that no account is taken of any money received by the estate as a result of the death. Examples would be receipt of insurance money payable on death, or a lump sum payment from a pension
  13. The Fatal Accidents Act 1976
    Death of C

    s1(1) A claim under the FAA 1976 id dependent on the original cause of action by the deceased person against D. In order to bring a claim under the Act, C have to be able to show that, had the deceased survived, he would have been able to bring a claim against D himself. (ie D must have committed a tort against the deceased)- it is 'parasitic' upon the original claim.

    s1(3) provides a definitive class of 'dependents' who can claim nder the act.

    s3(3) Damages for a widow/widower do not take into account the prospects of remarriage so as to shorten dependency and reduce damages.

    s4 Damages awarded under 1934 Act will not be taken into account.

    s1A the only people who can claim damages for bereavement are the wife, husband or civil partner of the deceased, or the parents of a minor who was never married or a civil partner.

    • s3(5) Funeral expenses paid out by dependents can claim under the this Act.
    • (Funeral expenses paid out of deceased's estate can claim under the the 1934 Act.)