Law of Tort

Today we finished the course. I am writing this in advance, so I hope that we finished it!

There are two main types of damages: non-compensatory which may be nominal, contemptuous or exemplary; and compensatory which may be general or special.

NON-COMPENSATORY DAMAGES

Non-compensatory damages may take one of three forms:

(1) NOMINAL - awarded to recognise that a legal right has been violated but the claimant has suffered no loss. A small sum of money is awarded. Such an award might be recovered in an action for trespass to land where the trespasser has caused no damage to the claimant’s land.

(2) CONTEMPTUOUS - awarded to demonstrate the opinion of the jury that the claimant should not have brought the action at all. They consist of the lowest coin of the realm and are usually awarded only in libel actions: REYNOLDS v TIMES NEWSPAPERS [1999] – award of 1p.

(3) EXEMPLARY - awarded to punish (note word) the defendant for his conduct and to deter such behaviour in the future. They are awarded in addition to compensatory damages. The circumstances in which exemplary damages may be awarded are set out in the speech of Lord Devlin in ROOKES v BERNARD (1964) AC 1129. Because the principle of punishing the defendant is inconsistent with the aims of the civil law of tort, such damages can only he awarded in certain torts and in very limited types of case as follows:

(a) For oppressive, arbitrary or unconstitutional action by persons holding public positions, e.g. government departments, the police, local authority employees. A typical example would be found in a successful action for trespass to the person or malicious prosecution against the police. The Court of Appeal has provided guidelines to assist a jury in such cases where the evidence supports a claim for exemplary damages. For example, such an award is unlikely to be less than £5,000 and may rise to £25,000, with an absolute ceiling of £50,000 for those situations where an officer of the rank of superintendent or higher was actively and directly involved in the commission of the tort: THOMPSON v COMMISSIONER OF POLICE OF THE METROPOLIS (1997).

(b) Where the defendant’s conduct has been calculated to make a profit for himself which will exceed any compensation which he will be ordered to pay. This could occur in a defamation action where the publisher hopes to take advantage of the publicity which a trial will bring. In CASELL v BROOME (1972) AC 1027 the House of Lords upheld the original jury’s award of £25,000 exemplary damages to the claimant having applied, by a majority, the formulation of the rules given in ROOKES v BARNARD (above). It was said that:

“… these were grave libels perpetrated quite deliberately and without regard to their truth by (the author) and a firm of publishers interested solely in whether they would gain by the publication of the book. They did not care what distress they caused.”

(c) Where a statute permits the award. Exemplary damages were claimed in AB v SOUTH WEST WATER SERVICES (1993) 1 ALL ER 609 by those who suffered as a result of drinking and using the contaminated water in Camelford. Although the Court of Appeal held that the defendants had attempted to cover up their mistakes by ignoring customers’ complaints and generally acting in a high-handed manner, they were not within the categories identified in ROOKES v BARNARD because they were not exercising executive power. Rather, their actions were to protect their own commercial interests. In addition, public nuisance was not a tort for which exemplary damages were considered appropriate. No exemplary damages were therefore recoverable. It is truye to say that such an award has never been made.

COMPENSATORY DAMAGES

Compensatory damages are to compensate the claimant for real harm done and are appropriate in torts which require actual damage. Damages may be either general or special:

1. GENERAL DAMAGES - those which do not need to be specifically pleaded and can be argued for at the trial. They are those which are presumed to follow from the tort, e.g. in an action for personal injury based on negligence, general damages include damages for pain and suffering, loss of amenity, future loss of earnings, etc.
2. SPECIAL DAMAGES - financial loss of specific amounts such as loss of earnings up to trial, damage to a vehicle, cost of private medical treatment, etc. These losses must be pleaded and proved by the claimant.

The purpose of an award of compensatory damages is to place the claimant in the position he was in before the tort was committed.

Since 1970, awards for personal injuries have been itemised to facilitate the assessment of interest. A single “lump sum” remains the most common method of receiving damages but there is now the possibility of an award of “provisional damages” under s32(a) of the SUPREME COURT ACT 1981. This new provision was introduced by s6 of the ADMINISTRATION OF JUSTICE ACT 1982 and provides the opportunity to assess the damages at two separate stages if:

“there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.”

This position may help certain claimant whose condition may or may not deteriorate in some specified manner, for example the onset of epilepsy following head injuries. At the trial the judge makes an award on the basis that the deterioration will not occur, but makes an order specifying the disease or deterioration and fixes a time limit within which the claimant can return to court should the disease or deterioration actually occur. In this way, the actual effects of the deterioration can be measured and an appropriate, rather than a totally speculative, award be made.

I have given you a handout for the case of LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY (1979), ad we shall use this real-life example to explain how the calculations are made.

PECUNIARY LOSS. In personal injuries actions where the claimant suffers serious injury as a result of the defendant’s negligence, pecuniary loss will comprise a large element in the claim.

LOSS OF EARNINGS. The claimant’s loss of earnings before the trial must be pleaded as special damages and he will recover his net loss.

Future loss of earnings are recoverable as general damages. The court starts with the claimant’s net annual loss, (the multiplicand) and deducts from the gross income, which the claimant expected to earn, income tax, social security contributions etc. The purpose of this exercise is to ensure that the claimant is in the same position as he would have been if he had been put to the trouble of actually earning the income. To do otherwise could be seen as giving the claimant an advantage as a result of the accident. The court then applies a figure known as the multiplier. This figure is calculated by taking the number of years the disability is likely to continue and then reducing it to take account of the contingencies of life and the fact that the claimant will have accelerated receipt of a lump sum which can be invested to provide income. If the disability or injuries, from which the claimant suffers as a result of the accident, will persist for 30 years (and the claimant would otherwise have expected to work during those years) the multiplier will be considerably lower than 30. In practice, it rarely exceeds 18. The calculation of multiplicand x multiplier should produce an amount of money which when invested provides an income equivalent to that lost, but it is also accepted that the capital will be drawn upon over the years. The end result should be that the lump sum is exhausted at the end of the (30 year) period of disability.

In ALLEN v BLOOMSBURY HA (1993) the claimant was compensated for the consequences of an unplanned birth (the negligence of the hospital doctor having been admitted). She recovered approximately £30,000, to represent her future loss of earnings until her daughter reached majority, plus a similar amount to represent the cost of maintaining the child to majority.

The law is now less sympathetic: McFARLANE V TAYSIDE HEALTH BOARD [1999].

THE LOST YEARS. If the claimant suffers a reduction in his life expectancy as a result of the tort, then the difference between pre-accident and post-accident life expectancy is known as the lost years. This was first recognised by the House of Lords in PICKETT v BRITISH RAIL ENGINEERING (1980), but the principle involved is not without its critics.

A living claimant is able to recover loss of future earnings which are not restricted to the remaining life span of the claimant.

A deceased claimant, in relation to the so-called lost years, will have certain deductions made from the net loss. These comprise of the sums which the claimant would have been likely to spend on himself in those years. Thus, a married man with dependants will have a deduction which takes into account what he for the joint benefit of the household. However, a single person with no dependants may find that the deductions are total except for savings which he might have made.

No damages are recoverable for the fact of loss of expectation of life itself but non-pecuniary damages may be awarded for mental suffering caused by the knowledge that life has been cut short.

EXPENSES. The claimant is entitled to recover all expenses reasonably incurred as a result of the treatment of his injuries. The claimant has a free choice as to whether to be treated privately or not. If the claimant is spared living expenses by virtue of being cared for at public expense in a hospital or similar institution, a deduction will be made to avoid over compensation. If a third party has incurred pecuniary loss in providing care for the claimant, this amount is recoverable as damages. This situation often occurs if a close relative provides nursing care in the victim’s home The carers have no claim for their own economic losses which this personal sacrifice may cost, but the court can compensate the victims, who in turn pay the carers for their services. Conversely, if the victim of the accident is prevented by his or her injuries from providing a service to others, for example a disabled housewife and mother, then compensation can be made to enable substitute assistance to be hired.

DEDUCTIONS.

As the object of damages is to compensate the claimant for losses incurred as a result of his injury, it is necessary for a court to work out to what extent the receipt of money from other sources must be set off against the damages.

Since 1st January 1989, almost all social security benefits will be deducted in full by the defendant and paid to the Department of Social Security (SOCIAL SECURITY ACT 1989, s22 and Schedule 4 now contained in Part IV SOCIAL SECURITY ADMINISTRATION ACT 1992). The principle is that the state will not subsidise tortfeasors and the claimant will not receive double compensation. The defendant must deduct statutory benefits paid or payable up to five years from the date of the accident and account for them to the DSS. The SOCIAL SECURITY (RECOVERY OF BENEFITS) ACT 1997 now provides for a revised scheme for the recovery of benefits paid in respect of an accident, injury or disease where the person claiming benefit also receives. compensation from a third party.
The Act introduces a “like-for-like” method of recoupment and benefits can only be recovered against one of three specific heads of damage:

past loss of earnings;
past cost of care;
loss of mobility.

All three heads of damage cover the five years immediately following the day on which the accident or injury occurred or, in the case of disease, five years beginning with the date on which the claimant first claimed a listed benefit in consequence of the disease.

Non-state benefits such as private insurance or pensions are generally non-deductible.

The principle, established by the House of Lords authorities of PARRY v CLEAVER (1969) 1 ALL ER 555 and SMOKER v LONDON FIRE AND CIVIL DEFENCE AUTHORITY (1991) 2 AC 502, that the only recoverable loss is the net loss and amounts received by way of disablement or incapacity pensions, are to be ignored in the calculation of damages for loss of earnings. However, if part of the claimants claim relates to a time after normal retirement age then the disability or incapacity pension payments due to be received after that date must be taken into account. Parry was applied in LONGDEN v BRITISH COAL CORP (1998) 1 ALL ER 289. The claimant, who worked as a pit deputy, was injured at work when he was aged 36. After the accident he was awarded an incapacity pension and a lump sum under his superannuation scheme. He also had a successful claim against his employers for damages and sought to recover the difference between the level of payments (both of lump sum and annual pension) that he would have received at normal retirement age (i.e. 60) and those he would continue to receive under the incapacity scheme. A distinction was drawn by the Law Lords in LONGDEN between the calculation that was relevant for the period after normal retirement age - when the total payments due to be received under the incapacity scheme would have to be brought into account to arrive at the net loss - and the situation prior to normal retirement age where the annual payments did not have to be taken into account but a proportion of the lump sum received would have to be.

NON-PECUNIARY LOSS. In addition to pecuniary losses a claimant may be entitled to compensation for injuries and other damage.

LOSS OF AMENITY. The claimant may recover damages for the injury itself and any consequent inability to enjoy life. It does not matter whether the claimant can appreciate his disability. The courts work from a tariff and the figure is adjusted in the light of the circumstances of the particular claimant. If a person used to enjoy a particular physical amenity, such as dancing, the figure can be increased. Impairment of one of the five senses, inability to play with one’s children, diminution of marriage prospects, impairment of sexual life and destroyed holidays may also be compensated under this head.

PAIN AND SUFFERING. Damages may be recovered for suffering attributable to the injury itself and any consequential surgical operations. An award may be made for compensation neurosis i.e. neurosis created by the delay and uncertainty of the litigation process. No damages are recoverable under this head if the victim does not recover consciousness. A conscious person can recover damages for suffering caused by the knowledge that life has been cut short - s1(b) ADMINISTRATION OF JUSTICE ACT 1982.

DEATH. Where defendant dies - cause of action generally survives against his estate.

Where the claimant dies - action generally survives for the benefit of his estate and a new action is created for his dependants. An action for defamation dies with the claimant, however.

The estate’s action is governed by the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934. This Act preserves the deceased’s subsisting action so it does not matter whether the defendant was responsible for the death as such. The effect of the Act is that the estate can recover all the damages which the deceased could have recovered, had he lived, from the breach of duty to the death. No damages are recoverable for future loss of earnings, bereavement, or exemplary damages.

In HICKS v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE (1992) 2 ALL ER 65 the House of Lords was asked to decide whether pain and suffering caused by the crushing of bodies in the Hillsborough football stadium disaster, and the awareness of impending death, are items of damage recoverable by the estate of a deceased person under s1(1) of the 1934 Act. The trial judge had found as a matter of fact that there was a very short space of time between asphyxia and death and that no injuries other than the fatal crushing had been suffered by the two deceased girls in question. The House would not overturn this finding of fact, given that the evidence had also been carefully reviewed by the Court of Appeal. Lord Bridge commented upon the argument that fear of death should give rise to compensation:

“it is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crush at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.”

The dependants’ action is governed by the FATAL ACCIDENTS ACT 1976.

1. A dependant may claim, including past and present spouses, ascendants and descendants, illegitimate children, relationships by affinity and consanguinity. Actions are normally brought by spouses, parents or children. The Act allows an action by a cohabitee where the parties had lived together as man and wife for two years immediately preceding the date of death. A divorced woman who became reconciled with her ex-husband is a dependant by virtue of being a “former” spouse and does not have to show two years cohabitation: SHEPHERD v POST OFFICE (1995) 1 THE TIMES 15TH JUNE. The action is brought in the name of the personal representative of the deceased or, if the personal representative has not acted, after six months of appointment, by any dependant of the deceased.
2. The action is essentially one for the loss of a breadwinner. It is a new action given to the dependants, not a survival of the deceased’s action. But the dependants must show that the deceased had a right of action. If the deceased had settled his claim or had obtained judgment, the dependants will have no claim. Equally, if a defence could have been argued by the defendant against the deceased, for example for contributory negligence of 10%, then the same proportional deduction can be made against the claims of the dependants. But if the deceased had limited the amount he could claim, the dependants are not bound by that limitation.
3. The basis of the action is that the dependants receive compensation for their economic losses. The main head of damages is pecuniary losses suffered from the date of death, assessed in two stages:

§ from date of death to the trial, on the basis of the deceased’s earnings, less the amount he would have spent on himself.
§ from date of trial into the future. For example the deceased was a 30 year old, married with two children, with a net income of £10,000 per annum with no promotion prospects. If he spent £3,000 per annum on his own living expenses, the dependants’ annual loss would be £7,000. A multiplier of 15 might be applied giving damages of £105,000 for pecuniary loss. In this context, the deduction mentioned above is solely the money which the deceased habitually spent on himself exclusively. This is in contrast with the situation where lost years are being calculated.
§ a spouse or parents of an unmarried minor may claim a fixed sum of £7,500 as damages for bereavement. If the deceased unmarried minor was illegitimate, only the mother can claim.

INJUNCTIONS

An injunction is an order of the court requiring that the defendant do some act or refrain from doing some act.

Injunctions are either:

MANDATORY - requiring the defendant to do some positive act, such as pull down a building or erect a fence
Prohibitory - requiring the defendant to refrain from some continuing act (for example a nuisance) or not to repeat it (for example a defamation)

Injunctions may be either final or interlocutory:

1. FINAL - awarded at the end of the trial as one of the remedies obtained by the successful party;
2. INTERLOCUTORY - awarded pending the trial of the action in order to prevent harm where damages alone, if the claimant were successful, would not be an adequate remedy. In defamation actions such an injunction should not be granted if the defendant indicates that he intends to plead justification - the rule against prior restraint.

SPECIFIC RESTITUTION

Where a defendant has unlawfully taken the claimants goods and is found liable in conversion, the court has a discretionary power to award the specific restitution of the article in addition to damages. This discretion is unlikely to be exercised where the article in question is an ordinary article of no special value, for then damages alone will adequately compensate.

SELF-HELP

Not generally favoured as it often involves further conflict between the parties. We covered them when we dealt with the individual torts, but for the sake of completeness they are:

1. Self defence.
2. Re-entry on land.
3. Recovery of chattels. A person may use reasonable force to re-take any chattel of his which is unlawfully taken or kept from him. If the wrongfully taken goods are on the land of some third person, who was not responsible for the taking in question, there is no clear answer as to whether the rightful owner may go onto the land to recover them,. It is suggested that there is such a tight if the article got there by accident or by the criminal act of the wrongdoer.
4. Abatement of nuisance.
5. Distress damage feasant.

Before breaking for Easter I handed out a previous examination paper, together with instructions as to what I want you to do with it for our next class.