Compensatory damages

• What does the term damages refer to?

  Monies paid to a claimant by the defendant
• Damages are intended to be compensatory and restorative
• How will damages restore a claimant to their pre-tortious position?

  They'll have their actual losses repaid and further compensation for future losses
• How do courts determine the appropriate amount of damages to award a claimant?

  Establish which losses the claimant will be compensated for - only those caused by D. (subject to test of reasonable foreseeability)
• What are the two types of losses that can be suffered by a C.?

  Pecuniary loss

  Non-pecuniary loss
• What is a pecuniary loss defined as?

  A loss with an easily identifiable financial value
• What is a non-pecuniary loss defined as?

  A loss that does not have an easily identifiable financial value
• What are examples of a pecuniary loss?

  Loss of earnings, travel costs, cost of cancelled holiday, cost of repairs, medical costs
• What are examples of a non-pecuniary loss?

  Physical injury, loss of amenity, loss of limb(s), psychiatric harm, shortening of life expectation, pain and suffering
• When will special damages be awarded?

  A pecuniary loss
• When will general damages be awarded?

  A non-pecuniary loss
• What are the three common heads of general damages?

  Pain, suffering and loss of amenity

  Future medical care and personal assistance

  Loss of future earnings
• What formula is used to calculate the damages that should be awarded for future loss of earnings?

  Claimant's net annual loss X number of earning years left = Damages for future loss of earnings
• When will general damages be awarded for pain, suffering and loss of amenity?

  Physical/mental injury and suffering - including reduction of quality of life
• Would a claimant in a permanent coma have grounds to claim under the pain, suffering and loss of amenity head?

  No
• When will general damages be awarded for future care and personal assistance?

  Where the C. requires ongoing medical care/assistance at home - where C. is cared for by relative, they can claim for loss of earnings
• When will general damages be awarded for loss of future earnings?

  Where C. is prevented from continuing their employment
• The claimant is under a duty to 'mitigate their losses'
• What does it mean that a claimant is under a duty to 'mitigate their losses'?

  They're under a duty to minimise any losses by taking reasonable action to do so
• A claimant may not be awarded damages for losses they could have prevented - discourages C's from maximising financial gain
• Traditionally, how were all damages paid?

  In a one-off lump sum payment
• Which Act introduced structured settlements?

  Damages Act 1996
• When are structured settlements most appropriate?

  Where the C. is likely to incur future pecuniary losses
• What are structured settlements?

  Regular payments where a lump sum is agreed - where the C. will be paid this lump sum and the rest in regular payments