Remedies

• Remedy


  What is issued by the court as a solution to the problem
• Compensatory Damages


  In a tort claim the court can issue a successful claimant compensation for their injury/damage suffered
• Compensatory Damages


  • The aim is to put the claimant in the position they were in before the tort was committed, as far as money can do so
  • This is easy when the claim is for damages, less so when it is for a personal injury claim
• Compensatory Damages


  • If a car is damaged in an accident the compensation will cover the cost of repairing the damage
  • If the accident caused serious disabling personal injury, while money may help it cannot make good such injuries
• Pecuniary Loss


  A loss that can be easily calculated in money terms, such as the cost of hiring a car while the claimant's own car is being repaired, repairing damaged clothes, or covering the cost of travel to and from hospital for treatment
• Non-Pecuniary Loss


  A loss that is not wholly money based, such as pain and suffering because of injury, or loss or amenity of a change in lifestyle, e.g. no longer being able to play sport
• Special Damages


  Amounts which are calculated specifically up to the date of the trial/settlement, and tend to be pecuniary losses
• General Damages


  Amounts which look forward from the trial/settlement, and tend to be the non-pecuniary losses, such as loss of amenity, future loss of earnings, and future medical expenses
• General Damages


  • These amounts are speculative, and evidence will have to be obtained to support the case, such as medical evidence for the effect of the injuries, how long they may take to heal, etc.
  • For future loss of earnings/medical expenses there has to be an annual calculation of the loss multiplied by the years of the loss
• Lump sums and Structured settlements

  • When an award for the damages is made it is a once only lump sum- the claimant cannot come back to court and ask for more
  • The Damages Act 1996 allows for structured settlements to be made, where the parties can agree that all of some of the damages will be paid in intervals, and the amount paid can be reassessed also in intervals to ensure the amount being paid is correct
• Lump sums and Structured settlements

  • This type of settlement protects both the claimant and the defendant
• Mitigation of Loss


  • The claimant is entitled to be fully compensated for their loss/damage to property, but this should be reasonable, e.g. if the claimant's Ford is damaged and being repaired, the cost of hiring a Bentley cannot be claimed as a replacement
  • When calculating this amount for loss of earnings, the claimant will be expected to mitigate the loss, e.g. if the claimant is able to work part time they should do so and this wage should be deducted from the damages awarded
• Mitigation of Loss


  • Marcroft v Scruttons (1954): The claimant was injured due to the defendant's negligence, but he refused to go to the hospital and his injuries worsened, and he tried to claim for the more severe injuries but could not as he had failed to mitigate his loss
• Great Ormond Street Hospital settle claim for Maisha Najeeb after she was injected with glue
• Damages for Maisha Najeeb


  • The amounts are based upon experts' assessment of Maisha's needs and will be spent on her care and accommodation
  • The agreed settlement was for an upfront lump sum payment of £2.8 million, and in addition £383,000.00 per year until Maisha is aged 19, which will then increase to £423,000.00 per year for as long as she lives
• The award for Maisha Najeeb will not put her in the position she was in before the incident, because she needs care and assistance with all daily tasks, day, and night, she is also in a wheelchair and has lost most of her bodily and cognitive abilities
• Injunction


  • A court order which stops someone doing something or limits when they can do it
  • If the person fails to comply with the injunction, they will be in contempt of court and could face a fine/maximum 2 years in prison
• Injunction


  • Coventry v Lawrence (2014)