Chapter 7: Remedies for personal injury and death

• Aim of damages


  To place the claimant in the same position they would have been in had the tort not occurred
• Pecuniary losses


  Financial losses suffered by the claimant as a result of the injury caused by the defendant
• Non-pecuniary losses


  Losses such as pain and suffering that can only be reflected in a monetary award
• Duty to mitigate


  The claimant has a duty to take reasonable steps to mitigate their loss
• Calculating loss of income


  1. Deduct tax and national insurance from the claimant's gross pay

  2. Take into account any sick pay provided by the employer
• Calculating future loss of income


  1. Take the claimant's pre-accident annual income (multiplicand)

  2. Multiply by the number of years of lost income (multiplier)

  3. Reflect the fact the claimant is getting the money in advance and the chance they could have lost their job anyway
• Calculating loss of income for claimant limited in return to work


  1. Take the difference between the claimant's pre-accident salary and new lower salary

  2. Use the same multiplicand and multiplier method
• Calculating loss of income for claimant with shortened life expectancy


  1. Calculate income they would have earned during lost years

  2. Reduce this figure to reflect living expenses they would have incurred
• Recoverable expenses


  Costs of medical treatment, care, necessary equipment and adaptations, and additional travel
• Past expenses


  Expenses incurred between injury and trial, capable of precise calculation
• Future expenses


  Losses assessed by the court based on evidence provided
• Cost of care


  Recoverable expense, but the carer does not have a separate claim
• Costs of necessary medical treatment

  Claimant can recover costs of private treatment even if NHS treatment was available
• Non-pecuniary loss


  Damages for pain, suffering and loss of amenity, determined by the court
• Unconsciousness limitation


  No damages for periods of unconsciousness, but claimant can recover for loss of amenity
• Damage to property


  Damages based on cost of replacement or diminution in value plus consequential costs
• Special damages


  Pecuniary losses that can be precisely calculated at time of trial or settlement
• General damages


  Non-pecuniary losses that need to be assessed by the court
• Survival of deceased's cause of action


  Existing cause of action survives for benefit of estate, can recover damages up to death
• Cause of death irrelevant

  Claimant's cause of action continues regardless of how death was caused
• Defamation claims


  Do not survive the death of the claimant
• Survival of action against deceased


  Causes of action against a deceased person also survive and can be brought against their estate
• Damages for dependence and bereavement


  New cause of action that may arise if claimant dies as a result of defendant's actions
• Damages for bereavement


  Fixed amount recoverable by eligible persons (spouse, civil partner, cohabiting partner, parents of minor deceased)
• Damages for loss of dependency


  Claimant must be an eligible dependent and financially dependent on the deceased
• Funeral expenses


  Recoverable if defendant caused the victim's death