UNIVERSITY OF THE WEST INDIES THE FACULTY OF LAW LAW OF TORTS II REMEDIES
Torts II/2011-12/JC5
Introduction:
The two main main remedie remediess in tort tort are the award award of damages damages and an injunct injunction ion.. There There are also cert certai ain n form formss of self self – hel hel!! such such as a"at a"atem ement ent of a nuisa nuisanc ncee or self self defen defence ce.. #e shal shalll concentrate on damages for ersonal injur$ and death where either of these has "een caused "$ the defendant%s negligence. In general& the urose of damages in tort is is to restore the status the status quo ante& ante& that is& to ut the laintiff in the osition she would ha'e "een in had the tort not "een commi committe tted& d& to the e(tent e(tent that this can "e achie'e achie'ed d "$ a a$men a$mentt of mone$ – Livingstone – Livingstone v. Rawyards Coal Co. Co. )1**0+ 5 ,. Cas. 25& .
SECTION I – DAMAGES FOR PERSONAL INURY secial general
,n award of damages in this conte(t co nte(t is the sum of the secial damages and general damages. ee Heeralall ee Heeralall v. Hack Bros (Construction) Co. Ltd. )1+ 25 #I3 11& 124 er a$nes C. )6+. )6+. - The purpose is not to attempt to insure completely that will will !e placed "or the rest o" his li"e in the same position position as i" he had not sustained sustained the in#uries. in#uries. But it is compensation compensation once and "or all and must !e adequate and commensura!le with the in#uries and the consequences o" them to . $t can only !e at !est a very rough estimate o" %s entitlement. The main distinctions "etween these t$es of damages are – )i+
the na nature of of th their l leading! an and (&eneral damages damages "low "rom actiona!le actiona!le per se torts and need not !e speci speci"ical "ically ly pleaded. 'pecial damages damages must !e pleaded and proven as part o" %s cause o" action in torts where damage is the gist o" the actionnegligence)
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the caa"ilit$ of their e(act calculation – note that comensation for damage or loss sustained "efore trial is treated as secial damages. 7g medical e(enses& loss of earnings to the date of trial (losses capa!le o" !eing pleaded with reasona!le accuracy are pleaded as special damages. $neact*unliquidated losses although must !e pleaded are compensated !y an award o" general damages.)
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S$%ci"& d"'"(%) – medical e(enses& loss of earnings& all out of oc8et e(enses
incurred to reduce the loss 9 :There is a general rule that ; can reco'er for the gratuitous ro'ision of care " $ a rd art$. S%%:
Tudor v. Co )1+ )6-4+- received serious head in#uries as a result o" +%s
negligence. ,"ter discharge "rom the hospital- his mother nursed him at home. Held !y Hus!ands an award must !e made "or those services. /This award was made under the authority o" Cunningham v Harrison. 'andi"ord v. rescod )1+ 12
1? ,ll 73 45- The eistence o" a legal*moral o!ligation to reim!urse the 1rd party was irrelevant. This was also %s loss. His loss was the eistence o" the need "or nursing services*special equipment- not the ependiture o" money itsel". 0here- who or whether was o!liged morally to repay the 1rd party are all irrelevant. Cunningham v. Harrison >1? @< 42- This award re"lects %s o!ligation to hold that portion o" the damages in trust to !e paid to the 1rd party supplying the service. Hunt v. 'evers >14? 2 ,ll 73 *5- This award cannot !e made where the services were provided !y +.
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G%n%r"& d"'"(%) – future loss in resect of ain and suffering& loss of amenities& loss of
future earnings& and loss of earning caacit$!
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Cornilliac v. 't. Louis )1A5+ #I3 41- $n assessing damages- these
considerations must !e !orne in mind2 3. 4ature and etent o" in#uries sustained 5. 4ature and gravity o" the resulting physical disa!ility 1. ain and su""ering 6. Loss o" amenities 7. 8tent to which pecuniary prospects were a""ected Heeralall v. Hack Bros (Construction) Co. L td )1+ 25 #I3 11 )6 -*0+ : Bollowed Cornilliac. &eneral damages "all under2 3. Loss o" "uture earnings*income 5. ain and su""ering 1. Loss o" amenities*en#oyment o" li"e. /9ther items may !e included in some cases eg "uture ependiture (cost o" prosthetic leg) / :iccisitudes* contingencies must !e considered
ote that the award of damages will "e in a once - for – all lum sum. This applies to accrued and prospective losses. The court has no power to require + to make periodical payments Burke v Tower Hamlets Health Authority ) er Lord 'teyn in Wells v Wells the court ought to (
!e given such a power as it would !e consistent with the principle o" "ull compensation "or pecuniary loss. This however- could only !e introduced !y parliament. There is a limited eception in Mullholand v Mitchell where there is evidence o" a change o" circumstances a"ter trial- !e"ore appeal- the C, will admit new evidence. $n Lim Poh Choo v Camden AHA, new evidence was admitted !y H9L to ;mitigate the in#ustices o" a lump sum system.
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Lo)) o, ,utur% %"rnin()
Buture earnings cannot "e recisel$ calculated as can "e re-trial earnings. It is essentiall$ a three-ste rocess of calculationD
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eriod for which the earnings would ha'e "een lost- working li"e "rom the current age to age o" retirement less a num!er representing consideration o" the viccisitudes o" li"e and consideration that is receiving a lump sum.
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amount of loss of earnings
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resent caital 'alue of future loss.
is the 'u&ti$&i%r and is deendent on 'arious factors such as the age& health& nature of emlo$ment etc. of the laintiff and which is sharl$ reduced for "oth the fact that the mone$ will earn interest o'er time and for Ethe 'icissitudes of lifeF. It is the num"er of $ears the loss is li8el$ to continue. It is then discounted to account for a+ uncertaint$ of the rediction ); might ha'e lost his jo"+ and "+ the fact that ; recei'es mone$ as a caital sum& instead of instalments o'er the rest of his wor8ing life.
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is the 'u&ti$&ic"nd and is "ased on li8el$ future income net of ta( and social securit$ contri"utions )ee eeralall 6 *-*0+. – C%s net annual loss o" earnings as at the date o" assessment. This will !e ad#usted an account o" %s individual prospects o" promotion (Roach v
earnings would have to !e reduced !y income ta at the relevant rate as well as !y 4ational $nsurance contri!utions which would have !een made. ,lphonso v. Ramnath )1+ 5A #I3 1*- The !asis o" the multiplicand should !e the least amount that would have !een earning i" he had continued working without !eing in#ured. Current earning capacity is su!tracted then that
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sum is multiplied !y weeks*months per year. $t is then multiplied !y the multiplier then discounted !y reason o" it !eing a lump sum. ,uguste v. 4eptune )1+ 5A #I3 22- where possi!le- damages should !e itemised under various headings. The trial #udge erred when he used a sum less than %s actual monthly income. Thomas v. Brighton .,. )1+ 1 ,C 45- H9L reinstated the decision o" the lower courts in using 67 = net rate o" return to calculate the multiplier to determine the award a"ter C, reduced it to 51 =. The court assumes that the lump sum would !e prudently invested.
3ele'ant considerationsD )a+
In,&"tion >
?allet v ?c ?anagle >1A? 2 ,ll 73 1*.- The multiplier will normally !e lower in "atal accident claims since the court must take into account not only the agehealth and "uture prospects o" the deceased !e"ore his death- !ut also that o" the dependants themselves. Lim oh Choo v. Camden H.,. >1*0? ,C 14- 4ew evidence was allowed !y H9L to mitigate the in#ustices o" a lump sum system. er Lord 'carman the correct approach should !e to assess damages without regard to the risk o" "uture in"lation. $" it can !e demonstrated that upon the particular "acts o" a case- such an assessment would not result in a "air compensation (!earing in mind the investment opportunity) that some increase was permissi!le. However the victims o" tort who received a lump sum award were entitled to no !etter protection against in"lation than others who had to rely on capital "or their "uture support. 'hamira v. +yal )1+ 50 #I3 2- The court is prepared to make allowance "or the e""ect o" in"lation provided that they are given cogent evidence and relevant evidence as to past and "uture trends. 0hen comes to recover his #udgment- so long as any part o" it is to !e "irst determined in a "oreign currency he should recover enough o" the equivalent local currency as to permit him to convert it !ack into the "oreign currency that according to he has lost or is otherwise entitled to. This can only !e achieved i" the conversion takes place at the date o" payment.
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T-% &o)t .%"r) –
ickett v. Britain Rail 8ngineering >1*0? ,C 1A.- ,llowance should !e made "or living cost that would have !een incurred !y had he lived. Harris v 8mpress ?otors Ltd. )1*+ ,ll 73 5A1- C, de"ined living epenses as @that portion o" :%s net earnings he spends to maintain himsel" at the standard o" living appropriate to the case.% This allowance is made since that cost will not !e required i" : is not alive.
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D%duction) )Generall$& 6*1-*+
Coleman v. ?c +onald )1+ 1A J=3 40 )C,+.- The payment o" medical epenses !y accident insurance taken out !y - whether solely or !y way o" a contri!ution with her employer- does not in any way prevent their recovery "rom +. Hussain v. 4ew Taplow aper ?ills >1**? 1 ,ll 73 541- + was %s employer. ,t 3 st instance2 $n assessing loss o" earnings- the #udge held @sick pay% payments were the proceeds o" insurance and should !e le"t out o" account. 9n appeal2 The "act that + recovered sums paid as @sick pay% "rom their insurers did not change the nature o" the payments which were a su!stitute "or %s capacity to earn and they should !e taken into account in reducing damages "or loss o" earnings. / Best seen as con"ined to its "acts ?c Camley v. Cammell Laird >10? 1 #=3 A.- Here + took out and paid "or personal accident policies on !ehal" o" all their employees. The proceeds were held to !e nondeducti!le as these were paya!le whenever an employee su""ered a quali"ying in#ury regardless o" "ault. $t was a product o" the employer%s !enevolence not a consequence o" the tort which later materialised. &aca v. irelli &eneral plc )2004+ ,ll 73 4*- Held that ?c Camley was wrongly decided. There is a "undamental di""erence !etween a payment made !y an employer to his employee to compensate him "or the consequences o" in#uries su""ered in an accident- and a payment made !y a 1rd party out o" sympathy "or his*her plight. The instant case did not "all within the !enevolence eception !ecause the payments had !een made !y +- and the payment o" !ene"its under the insurance policy was not equivalent or analogous to payments made !y 1rd parties out o" sympathy.
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Loss of earning caacity
,warda"le where )i+
laintiff%s future a"ilit$ to earn would "e reduced if he had to return to the jo" mar8et or
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where ; is a $oung child or is unemlo$ed so that there is no actual loss of earnings.
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?oeliker v. Reyrolle and Co. Ltd. >1? 1 #=3 124- 0here is still employed
at the date o" trial- the court should only make an award "or loss o" earning capacity i" there is a su!stantial*real risk that will lose his employment !e"ore the estimated end o" his working li"e. $" there is- the court must assess and quanti"y the present value o" the risk o" the "inancial damage will su""er i" the risk materialises- having regard to the degree o" risk- time it may materialise- and the "actors !oth "avoura!le and un"avoura!le which in a particular case- will or may not a""ect %s chances o" getting a #o! at all or equally well paid #o! i" the risk should materialise. 4o mathematical calculation is possi!le in assessing and quanti"ying the risk in damages. $" however- the risk o" losing his #o! or i" his !eing una!le to o!tain another #o! or equally good #o!- or !oth- are only slight- a low award measured in hundreds o" pounds- will !e appropriate. elter v. A0$ )14+ 0
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P"in "nd )u,,%rin(
; must ha'e "een aware of )or a"le to areciate+ the ain of his injur$ and an$ mental suffering such as shoc8& deression etc. – Heeralall & sura.
ee also 0est v. 'hepherd >1A4? ,C 2A& >1A? 2 ,ll 73 A25.- 4o damages will !e awarded under this head i" was unconscious throughout the period and thus did not actually su""er any physical or mental pain. 0here a person is incapacitated and is capa!le o" appreciating his condition- he will !e compensated "or the anguish this creates.
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Lo)) o, %/$%ct"tion o, &i,%
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Lo)) o, "'%niti%)
=oss of enjo$ment of life "ecause of injur$ ee
'kelton v. Collins )1*A+ ,J=3 4*0.- Here a distinction was
made !etween the su!#ective and o!#ective aspects o" loss o" the amenities o" li"e. ure o!#ective loss 0here has !een rendered into a permanent state o" coma- this is satis"ied !y an award o" a small sum. 'u!#ective loss 0here remains "ully conscious o" his plight- he may !e compensated with a su!stantial award.
SECTION II – DAMAGES FOR DEATH
In cases of death& there are two ossi"le actions – )i+ the estate or survival action under the rele'ant legislation "$ the ersonal reresentati'es of the deceased& usuall$ under the =aw 3eform )H;+ ,cts and )ii+ the deendants! action under the rele'ant Batal ,ccidents legislation for their own loss – the 'alue of the deendenc$.
Bor some e(amles of Batal ,ccidents
legislations in the region& see Eodilinye – ,endi( 2.
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o far as the sur'i'al condition is concerned ee generall$! +ion v. Harris )1+ 0 J=3 A
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Gammell v. 0ilson >1*1? 1 ,ll 73 5*- H9L2 it was neither #ust nor sensi!le to allow a claim "or lost years !y an estate !ecause it amounted to dou!le indemnity. However- this was too radical a change to make !y #udicial decision so it allowed the claim here. $t should !e :%s estate or dependants making the claim- not !oth.
Likely duration o" the dependency
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+eceased%s pre accident working li"e epectancy
G%n%r"& d"'"(%)
0atson v. 0ellmott )11+ 1 @< 140- (a minor) lost his parents at almost 1 yrs !y motor accident. He was adopted at nearly 7 yrs !y his aunt and uncle. sued "or loss o" dependency. +amages were assessed as loss o" dependency on deceased "ather less dependency on adoptive "ather. $t was not proper to assess di""erences !etween degree or nature o" care !etween the natural and adoptive mother analogous to di""erences in "inancial dependency. ,doption replaced nonpecuniary dependency on the deceased mother. +amages awarded accordingly. ?urray v. 'hutter )1A+ @< 2- There is no action where the deceased actually o!tained #udgment in an action in tort against +.
C"&cu&"tion
Rose v. Dord )1+ ,C *2A& *42 er =ord #right- @damages in general may !e calculated where the death has !een caused !y the wrong- !ut ecludes "rom the calculation losses or gains to the estate consequent on the death...o!vious instances o" what are re"erred to are such items as on the one side insurance moneys "alling due on death- and- on the other annuities ceasing on death. These are irrelevant to the question o" what damages can survive- !ecause the dead man could neither have collected such gains nor eperienced such losses.
Fun%r"& %/$%n)%)
'tanton v. 8wart D.
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In resect of the Batal ,ccidents claim "$ the deendants ?ara# v. 'amlal )1*2+ >60?
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?c Carthy v. BL F Co. Ltd. )1**+ >64?
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7ntitlement to sue Burns v. 8dman >10? 2 @< 541- The deceased supported and
his dependants through the proceeds o" crime. was only a!le to recover "uneral epenses under the Datal ,ccidents ,ct and a reduced amount o" damages under the LR(?), "or loss o" epectation o" li"e. 4unan v. 'outhern Railway Co. >124? I3< 22- The deceased%s employee%s train ticket made + lia!le "or personal in#uries not eceeding 3l. 'wi"t awarded Gl and + appealed. Held2 By virtue o" the H9L decision in The :era Cruthe cause o" action o" the dependants is a new and distinct one- in respect o" which the
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damages are estimated on an entirely di""erent !asis. there"ore was not limited !y the terms o" her hus!and%s employee train ticket. ,ppeal dismissed. Badger v. ?inistry o" +e"ence >200A? ,ll 73 1- The deceased was eposed to as!estos during his employment !ut also smoked a!out 5 cigarettes per day. He died o" lung cancer. The question arose whether or not damages should !e reduced due to contri!utory negligence (smoking) on his part. Held2 , person- who knew or ought to have known that !y continuing to smoke he was damaging his health- had to accept responsi!ility "or his actions. +amages reduced !y 5=.
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=oss of deendenc$ Co v. Hockenhull >1? ,ll 73 *2- Here was "inancially
dependent on state !ene"its which were paid in respect o" his late wi"e%s disa!ilities who died in a road accident due to +%s negligence. 'ome o" the !ene"its ceased when his wi"e died and at "irst instance he received a dependency award. 9n appeal C, held that there can !e a "inancial loss even where the state is the sole source o" income. The determining "actor is the nature o" the !ene"its claimed. ?alyon v. lummer >1A4? 1 @< 50- Here the hus!and and wi"e were directors o" the company run !y the hus!and. The wi"e "rom time to time did administrative work which she was paid "or. The court must !e realistic in its approach to assessing dependency under the Datal ,ccidents ,ct. Here the interposition o" the company did not prevent the court "rom assessing the loss which truly su""ered. 'he lost her hus!and whose !usiness had !een destroyed !y his death and the revenue which was in su!stance derived "rom himI !ut the services she rendered to the company could not !e treated as o" no value- and there"ore the dependency must !e reduced !y such an amount as represented the true value o" the services which on the "acts- was 5 per annum. +avies v. Taylor >14? 2 ,ll 73 *A- claimed loss o" dependency under the Datal ,ccidents ,ct in relation to her estranged hus!and. H9L re#ected her appeal on the ground that she only had a speculative and not su!stantial prospect o" continuing dependency. er Lord Reid2 @
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happened- !ut you cannot prove that a "uture event will happen and $ do not think that the law is so "oolish as to suppose that you can.%
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,ssessment – Cor!ett v. Barking- Havering and Brentwood H, J 11? 2 @<
40*- %s (a minor) mother died in 3K !ut the action was !rought in 3KG7. Held (C,)2 0here there was a long delay in pursuing a claim under the Datal ,ccidents ,ct- the known "act o" the dependant%s survival up to the date o" trial must !e taken into account when calculating the multiplier "rom the date o" death. , minor addition should !e made to the multiplier i" evidence o" the dependant proceeding to higher education was evenly !alanced. The #udge was #usti"ied in eercising his discretion not to award the "ull amount o" interest on the damages recovered up to the date o" trial !y the eceptional delay in pursuing %s claim. Cookson v. Enowles >1? ,C 55A- $n the normal "atal accidents case- the damages ought- as a general rule- to !e split into two parts2 (a) the pecuniary loss which it was estimated the dependants had already sustained "rom the date o" death up to the date o" trial (pretrial loss)- and (!) the pecuniary loss which it was estimated they would sustain "rom the trial onwards ("uture loss). $nterest on the pretrial loss should !e awarded "or a period !etween the date o" death and the date o" trial at hal" the short term interest rates current during that period. Dor the purpose o" calculating the "uture loss- the ;dependencyM used as the multiplicand should !e the "igure to which it was estimated the annual dependency would have amounted !y the date o" trial. 4o interest should !e awarded on the "uture loss and no other allowance should !e made "or the prospective continuing in"lation a"ter the date o" trial.
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;rosects of remarriage – Howitt v. Heads >12? 1 ,ll 73 41- The question o" a widows
prospect o" remarriage might !e relevant only in relation to apportionment o" the damages awarded. er CummingBruce @,s a consequence o" that ,ct JLR(?),N in assessing damages paya!le to a widow...there shall not !e taken into account the remarriage o" the widow or her prospects o" remarriage...no such eclusion is epressly
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provided in the case o" damages paya!le "or the !ene"it o" children o" the deceased. There may !e cases in which that di""erence is o" real signi"icance.%
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Generall$ – Cu'*%r*"tc- – )1**+ 1 ,nglo > ,merican L.R. 1A for a comment on this ,ct.
%,, Cu'*%r*"tcNo0%'*%r 2344
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