#10358 - Damages In Pi - BPC Civil Litigation

DAMAGES IN PI (QUANTUM)

MEASURE OF DAMAGES

• = the tortious measure - put in C in position as if accident never occurred

TIME OF ASSESSMENT

• date of trial

FORMULA

(1) special damages

+

(2) general damages

-

(3) deductions

-

(4) contributory negligence

+

(5) interest (see separate document)

=

total damages

(1) SPECIAL DAMAGES

• = losses between accident and trial (pre-trial)

• liquidated

• must be: provable AND reasonable (if not court will NOT award OR award reasonable sum)

• time of assessment

  • take cut off point as today (anything after = general damages)

  • do NOT invent notional trial date

1. specific one off losses - e.g. cost of car hire, damaged vehicle, cancelled holiday

2. loss of earnings N.B. for serious injuries, could be special AND general damages

   1. net loss (i.e. after tax and NI)

   2. may be complete OR partial (top slice)

   3. sick pay etc deducted

   4. amount

   • fluctuating income: average of 6 pay packets, then X by no. weeks / months client NOT working

   • regular income: cf someone else doing same job

   • may claim increase in earnings if long time between accident and trial (= claim for loss of chance if chance of increase 50% x by increase)

   • (D will argue decrease)

3. loss of social security if unemployed

4. loss of fringe benefits from C's employment

   1. e.g. company car

5. cost of medical treatment N.B. if post-trial = general

   1. NOT obliged to claim on NHS

6. costs associated with medical treatment

   1. travel to and from hospital

   2. prescriptions etc.

7. costs of services / care N.B. if post-trial = general

   1. recoverable as part of C's own loss

   2. can recover for services of:

   • commercial care provider @ reasonable commercial rate

   • friend / family member @

     • commercial rate - 25%; OR

     • foreseeable loss of earnings, if give up work

   • value of care provided by charity

   • NOT the D (i.e. if the D provides the care)

   • NOT friend / family acting in course of his business

8. cost of medical appliances N.B. if post-trial = general

   1. special equipment

   2. cost of buying new home (2.5% x difference in capital value between new + old)

   3. cost of renting new home (increase in rent)

   4. costs of converting home (can be on top of renting / buying new home, unless increases value)

9. value of free care C used to provide to family member which he is no longer able to provide

10. increases in ordinary expenditure

11. costs incurred by members of family

    1. recoverable as part of C's own loss

    2. visiting in hospital, looking after, including loss of earnings etc.

12. court of protection fees i.e. costs of administering trust fund (child / PP)

(2) GENERAL DAMAGES

• UNliquidated

1. pain + suffering

   1. = suffering caused by injury (so patient immediately rendered permanently unconscious recovers nothing)

   2. includes shock, embarrassment, emotional injury connected to physical injury

2. loss of amenity

1. = loss of amenity itself (so coma patient can recover)

2. highly subjective e.g. broken leg for footballer

3. pain + suffering + loss of amenity = PSLA

1. nature + extent of injuries

   1. medical evidence e.g. expert report

   2. law witness evidence e.g. family - effect on life

2. appropriate quantum range (JSB Guidelines)

   1. useful sites

      1. www.lawtel.com > specialist areas > PI > JSB guidelines

      2. *** Kemp and Kemp

      3. Butterworths PI online service

3. refine quantum range (case law)

   1. cases

      1. 3 - 6 cases to compare

      2. distinguish cases on:

         • age

         • sex

         • extent of injury

         • loss of amenity

         • recovery period

         • permanent / temporary

   2. decide narrow range

   3. uplift N.B. factored into Lawtel

      1. Heil v Rankin N.B factored into JSB guidelines

         • pre-March 2000 awards of >10k

         • uplift = (A - 10,000) /420,000 x A

      2. inflation

         • use recent case if possible to avoid inflation

         • RPI indeces: A x [RPI this month] / [RPI for month of award to uplift]

      3. H v R AND inflation

         • add inflation up to March 2000

         • add H v R uplift

         • add inflation to today's date

      4. LASPO 2012

         • pre-April 2013 quantum judgments - add 10% (unless client signed CFA before April 2013)

   4. dealing with future uncertainty

      1. e.g. 10% chance of unfavourable development 10% x damages for that development; OR

      2. provisional damages (deterioration)

   5. dealing with multiple injuries

      1. don’t just add each injury together

      2. assess main injury then consider if minor injuries have affected PSLA

4. handicap in labour market - Smith v Manchester award

1. harder to find job due to injuries

5. loss of congenial employment

1. loss of job satisfaction = 5 - 10k

6. loss of pension rights

1. expert evidence from actuary / accountant (beyond scope of course)

7. loss of marriage prospects

8. breakdown of marriage

9. future damages

1. = future loss of earnings + cost of care

2. formula

   • multiplicand (net annual loss) X multiplier (no. of years of loss)

   • multiplicand

   • multiplier

     • = period of likely future loss, allowing for contingencies for life + accelerated receipt

     • Ogden tables = actuarial tables, admissible in court

       • help to find correct multiplier

       • rate of return (2.5%) column cross with age column

(3) DEDUCTIONS

1. state benefits

1. recoupment against special damages - if C gets benefit in respect of injury / disease AND compensation from D = double recovery C pays state back out of damages for benefits up to 5 years from date of injury

2. certificate of recoverable benefits

   • D must apply for certificate from Compensation Recovery Unit (informs how much must pay within certain time)

   • if D doesn't pay in time, must apply for new certificate

3. if recoupment > damages, D must pay difference to CRU (usually insured)

4. only recoverable against appropriate head e.g. loss of earnings income support

5. following recoverable:

   • loss of earnings

     • income support

     • incapacity benefit

     • SSP

     • JSA

     • disablement pension

   • costs of care

     • attendance allowance

     • care component of DLA

2. sick pay under employment contract

3. NON-deductible payments

1. insurance OR pension payment as a result of injury (unless D paid premiums)

2. benevolent donations e.g. from charity, disaster fund, friends / family

3. ex gratia payment by C's employer (unless employer = D)

4. redundancy payment (unless triggered by injury)

(4) CONTRIBUTORY NEGLIGENCE

(5) INTEREST

1. interest on special damages

1. 0.25% p/a from date of accident to date of trial on quantum

2. (0.25% = half of HC special investment account rate (0.5%))

2. interest on general damages

3. PSLA

   • = 2% p/a from date of service to date of trial on damages

   • interest awarded under s35A SCA 1981 OR s69 CCA 1984

4. future losses

   • NO interest on future losses

TAXATION OF DAMAGES

Special damages

• the Gourley principle

  • if = loss of income, tax which would've been paid on that income deducted from damages

  • hence why loss of earnings = net earnings

General damages

• PSLA = tax free

• future loss of earnings = Gourley principle

PERIODICAL PAYMENTS

• court decides

• C receives damages in regular payments as opposed to lump sum

• rationale: prevent under compensation if live longer than anticipated at trial

• most appropriate in high value, severe injury cases