UNIVERSITY OF THE WEST INDIES THE FACULTY OF LAW LAW OF TORTS II REMEDIES Torts II/2011-12/JC5 Introduction: The two

main remedies in tort are the award of damages and an injunction. There are also certain forms of self hel ! such as a"atement of a nuisance or self defence. #e shall concentrate on damages for ersonal injur$ and death where either of these has "een caused "$ the defendant%s negligence. In general& the ur ose of damages in tort is to restore the status quo ante& that is& to ut the laintiff in the osition she would ha'e "een in had the tort not "een committed& to the e(tent that this can "e achie'ed "$ a a$ment of mone$ Livingstone v. Rawyards Coal Co. )1**0+ 5 , . Cas. 25& -.. SECTION I DAMAGES FOR PERSONAL IN URY / s ecial 0 general ,n award of damages in this conte(t is the sum of the s ecial damages and general damages. 1ee Heeralall v. Hack Bros (Construction) Co. Ltd. )1.22+ 25 #I3 112& 124 er 5a$nes C. )6-2-+. - The purpose is not to attempt to insure completely that will !e placed "or the rest o" his li"e in the same position as i" he had not sustained the in#uries. But it is 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 nature of their leading! and (&eneral damages "low "rom actiona!le per se torts and need not !e speci"ically pleaded. 'pecial damages must !e pleaded and proven as part o" %s cause o" action in torts where damage is the gist o" the action(negligence)

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the ca a"ilit$ of their e(act calculation note that com ensation for damage or loss sustained "efore trial is treated as s ecial 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. $ne)act*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 incurred to reduce the loss 9

oc8et e( enses

:There is a general rule that ; can reco'er for the gratuitous ro'ision of care "$ a -rd art$. S%%: Tudor v. Co) )1.2.+ )6-2--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 )1.22+ 12 <ar". =3 55.er 0illiams .( the task o" a mother in !ringing her o""spring to maturity can !e thankless enough as it is- without her !eing e)pected to spend her more advanced years in looking a"ter her grown child. $" she is to do so- compensation should !e provided. $" a handicapped person is committed to her care she is unlikely to !e a!le to do paid work elsewhere. There is no o!ligation to relieve + o" the consequences o" his negligence. There is no question o" to mitigate damages. +onnelly v. .oyce >1.2-? - ,ll 73 425- The e)istence o" a legal*moral o!ligation to reim!urse the 1rd party was irrelevant. This was also money itsel". 0here- who or whether irrelevant. Cunningham v. Harrison >1.2-? @< .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 >1..4? 2 ,ll 73 -*5- This award cannot !e made where the services were provided !y +. %s loss. His loss was the e)istence o" the need "or nursing services*special equipment- not the e)penditure o" was o!liged morally to repay the 1rd party are all !eing required

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G%n%r"& d"'"(%) future loss in res ect of ain and suffering& loss of amenities& loss of future earnings& and loss of earning ca acit$! S%% Cornilliac v. 't. Louis )1.A5+ 2 #I3 4.1- $n assessing damages- these 3. 4ature and e)tent o" in#uries sustained 5. 4ature and gravity o" the resulting physical disa!ility 1. ain and su""ering 6. Loss o" amenities 7. 8)tent to which pecuniary prospects were a""ected Heeralall v. Hack Bros (Construction) Co. Ltd )1.22+ 25 #I3 112 )6 -22--*0+ :

considerations must !e !orne in mind2

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 e)penditure (cost o" prosthetic leg) / :iccisitudes* contingencies must !e considered Cote 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 e)ception 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. $n Lim Poh Choo v Camden AHA, new evidence was admitted !y H9L to ;mitigate the in#ustices o" a lump sum system. !i+# Lo)) o, ,utur% %"rnin() Buture earnings cannot "e recisel$ 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 resent ca ital 'alue of future loss. is the 'u&ti$&i%r and is de endent on 'arious factors such as the age& health& nature of em lo$ment etc. of the laintiff and which is shar l$ 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 ca ital 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 )1ee 5eeralall 6 -2*--*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 <ates). &enerally no allowance is made "or increases in average earnings. Heeralall re(a""irmed Cornilliac. 9n appeal it was held the trial #udge erred in e)cluding a third source o" income in his calculations. There must !e equality o" !urden and !ene"it. 0here the cows were sold- the proceeds and prospective income "rom milk sales cannot !oth !e used. $t must !e one. A&)o: .ohnson v. Browne )1.22+ 1. #I3 -*2- The amount allowed "or loss o" 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..2+ 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

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..2+ 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 5.,. )1...+ 1 ,C -45- H9L reinstated the decision o" the lower courts in using 6(7 = net rate o" return to calculate the multiplier to determine the award a"ter C, reduced it to 5(1 =. The court assumes that the lump sum would !e prudently invested. 3ele'ant considerationsD )a+ In,&"tion > ?allet v ?c ?anagle >1.A.? 2 ,ll 73 12*.- 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 124- 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 1-A.- ,llowance should !e made had he lived.

"or living cost that would have !een incurred !y

Harris v 8mpress ?otors Ltd. )1.*-+ - ,ll 73 5A1- C, de"ined living e)penses 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. )c+ D%duction) )Generall$& 6-*1--*2+ Coleman v. ?c +onald )1.2.+ 1A J=3 4.0 )C,+.- The payment o" medical e)penses !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 3st 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 >1..0? 1 #=3 .A-.- Here + took out and paid "or personal accident policies on !ehal" o" all their employees. The proceeds were held to !e non(deducti!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 e)ception !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 ca acity ,warda"le where )i+ )ii+ laintiff%s future a"ilit$ to earn would "e reduced if he had to return to the jo" mar8et or where ; is a $oung child or is unem lo$ed so that there is no actual loss of earnings.

1ee

?oeliker v. Reyrolle and Co. Ltd. >1.22? 1 #=3 1-24- 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 risk o" the "inancial damage 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 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. $" however- the risk o" slight- a low award measured in hundreds o" pounds- will !e appropriate. elter v. A0$ )1..4+ -0 <ar". =.3. 10. )C,+- C, "ound that the trial #udge applied the right principles in awarding B3C-CCC.CC taking into consideration that her disa!ility may at some time in the "uture cause her some "inancial disadvantage in the la!our market unless she retooled since he had to !e highly speculative and did not inter"ere with the award under this head. Drancis v. Baker )1..2+ 2. J=3 424 )C,+.- This case also cited ?oeliker in e)plaining the !asis o" an award "or loss o" earning capacity. !ii+# P"in "nd )u,,%rin( ; must ha'e "een aware of )or a"le to a reciate+ the ain of his injur$ and an$ mental suffering such as shoc8& de ression etc. Heeralall& su ra. losing his #o! or i" his !eing una!le to o!tain another #o! or equally good #o!- or !oth- are only

1ee also 0est v. 'hepherd >1.A4? ,C -2A& >1.A-? 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$ment of life "ecause of injur$ 1ee 'kelton v. Collins )1.*A+ -. ,J=3 4*0.- Here a distinction was has !een rendered into a permanent state o" coma- this is satis"ied

made !etween the su!#ective and o!#ective aspects o" loss o" the amenities o" li"e. ure o!#ective loss( 0here !y an award o" a small sum. 'u!#ective loss( 0here 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 re resentati'es of the deceased& usuall$ under the =aw 3eform )H;+ ,cts and )ii+ the de endants! action under the rele'ant Batal ,ccidents legislation for their own loss the 'alue of the de endenc$. Bor some e(am les of Batal ,ccidents legislations in the region& see Eodilinye , endi( 2. )i+ 1o far as the sur'i'al condition is concerned 1ee generall$! +i)on v. Harris )1..-+ -0 J=3 A2 remains "ully conscious o" his plight- he may !e compensated with a

Gammell v. 0ilson >1.*1? 1 ,ll 73 52*- 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. <ut cf =aw 3eform )Hiscellaneous ;ro'isions+ ,ct& Ca . 205& s. 2 )4+ )"+& )<ar"ados+ damages "or lost years no longer recovera!le !y estate in survival action. Calculation2 3. +eceased%s salary at the date o" death minus ta) and national insurance. 5. +eduction o" the amount the deceased would have spent e)clusively on himsel" is then made. 1. The remainder will !e the multiplicand. 6. The multiplier is then applied. This will !e !ased on "actors such as Likely duration o" the dependency +eceased%s pre accident working li"e e)pectancy

G%n%r"& d"'"(%) 0atson v. 0ellmott )1..1+ 1 @< 140(a minor) lost his parents at almost 1 yrs sued "or loss !y motor accident. He was adopted at nearly 7 yrs !y his aunt and uncle.

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 non(pecuniary dependency on the deceased mother. +amages awarded accordingly. ?urray v. 'hutter )1.2A+ @< .22- There is no action where the deceased actually o!tained #udgment in an action in tort against +. C"&cu&"tion

Rose v. Dord )1.-2+ ,C *2A& *42 er =ord #right- @damages in general may !e calculated where the death has !een caused !y the wrong- !ut e)cludes "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 e)perienced such losses. Fun%r"& %/$%n)%) 'tanton v. 8wart D. <ouldon Ltd. )1.A0+ 1 ,ll 73 42.- , gravestone may properly !e considered as part o" the "uneral e)penses i" it is a reasona!le e)penditure "or persons in the position o" the deceased and the relatives responsi!le "or ordering it. But in so "ar as it is merely a memorial set up as a sign o" love and a""ectionthen it should not !e included. The Law Re"orm (?iscellaneous rovisions) ,ct ena!les the court to award damages in respect o" "uneral e)penses to the e)tent that they have !een reasona!ly incurred as a lia!ility o" the estate. $t does not matter that the !ills were "irst paid !y the e)ecutor. )ii+ In res ect of the Batal ,ccidents claim "$ the de endants S%% (%n%r"&&.1 ?ara# v. 'amlal )1.*2+ >6-.0? ?c Carthy v. BL F S%% "&)o: )a+ 7ntitlement to sue Burns v. 8dman >1.20? 2 @< 541- The deceased supported his dependants through the proceeds o" crime. LR(? ), "or loss o" e)pectation o" li"e. 4unan v. 'outhern Railway Co. >1.24? I3< 22-- The deceased%s employee%s train ticket made + lia!le "or personal in#uries not e)ceeding 3CCl. 'wi"t . awarded GCCl and + appealed. Held2 By virtue o" the H9L decision in The :era CruHthe cause o" action o" the dependants is a new and distinct one- in respect o" which the and was only a!le to recover "uneral Co. Ltd. )1.**+ >6-.4?

e)penses under the Datal ,ccidents ,ct and a reduced amount o" damages under 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 12-- The deceased was e)posed to as!estos during his employment !ut also smoked a!out 5C 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 5C=. )"+ =oss of de endenc$ 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 >1.A4? 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 B5CC per annum. +avies v. Taylor >1.24? 2 ,ll 73 *-Aclaimed 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 @<ou can prove that a past event

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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.% )c+ ,ssessment Cor!ett v. Barking- Havering and Brentwood H, J 1..1? 2 @< 40*- %s (a minor) mother died in 3KLL !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 e)ercising his discretion not to award the "ull amount o" interest on the damages recovered up to the date o" trial !y the e)ceptional delay in pursuing %s claim. Cookson v. Enowles >1.2.? ,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 (pre(trial loss)- and (!) the pecuniary loss which it was estimated they would sustain "rom the trial onwards ("uture loss). $nterest on the pre(trial 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. )d+ ;ros ects of remarriage Howitt v. Heads >1.22? 1 ,ll 73 4.1- The question o" a widows prospect o" remarriage might !e relevant only in relation to apportionment o" the damages awarded. er Cumming(Bruce .(@,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 e)clusion is e)pressly

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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.% )e+ <erea'ement ,ccident Com ensation ,ct& Ca 1.- , )<ar"ados+ 1* )e+. ?c Carthy su ra! and Cum"er"atch EHissing ,n ,ction 9..F )1..0+ 12 Liverpool Law Rev. *.-112 Generall$ Cu'*%r*"tc- )1.**+ 12 ,nglo > ,merican L.R. -1A for a comment on this ,ct.

%,, Cu'*%r*"tcNo0%'*%r 2344

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