Munkman on Damages for Personal Injuries and Death

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1 Munkman on Damages for Personal Injuries and Death Twelfth edition Gordon BA (Warwick) of Lincoln's Inn, Barrister

2 Foreword to the twelfth edition by Julian Goose QC Preface to the twelfth edition Preface to the first edition Table of statutes Table of statutory instruments Table of cases v vii ix xxi xxiii xxv Chapter 1 The purpose of damages in personal injury cases 1 Damages are compensation in money 1 Meaning of compensation 2 Damages are not punitive 2 Universality of the reparation principle 3 Damages must be full and adequate 3 Damages are normally assessed once and for all 3 Difficulty and uncertainty of assessment does not preclude an award of damages 4 Circumstances where the courts will allow a postponement of the trial date 6 A finding of contributory negligence does not affect the court's assessment of damages 6 Chapter 2 Overview of the types of damages in personal injury cases 7 Quantification 7 Chapter 3 Remoteness of damage and causation Remoteness of damage: practical difficulties 15 Remoteness in practice 15 Issues of remoteness in cases of negligence or breach of statutory duty 16

3 Novus actus interveniens 20 Remoteness of damage: distinction between breach of contract and tort 24 Causation and asbestos cases - the development of the 'Fairchild exception' 26 Chapter 4 Mitigation of damages The 'duty' to mitigate loss a misnomer? 31 The burden of proof 31 Consequences of failure to mitigate Common issues of failure to mitigate loss in personal injury actions 32 Chapter 5 Special forms of damages: Exemplary and aggravated Some special forms of damages 41 A second basis upon which to award exemplary damages 42 Exemplary damages in personal injury cases? 42 Aggravated damages 43 Should the court expressly separate the awards for pain and suffering and aggravated damages? 43 What amounts to exceptional cases? 43 Unnecessary medical treatment 44 Damages for rape 44 The true purpose remains compensation 44 Chapter 6 Damages for personal loss: disablement, pain, suffering and loss of amenity - what is being compensated? 45 Personal loss as an element in damages 45 The claim for the physical injury is compensation and not a solatium 45 The personal loss covers more than pain 46 The elements of a claim for pain, suffering and loss of amenity 47 Where the claimant suffers multiple injuries 53 Acceleration cases 54 Chapter 7 Damages for shock, psychiatric injury and workplace stress 55 Psychiatric injuries and the law of damages 55 Shock 55 41

4 Stress at work: a special case 63 Some special considerations in sexual abuse cases 66 Chapter 8 Assessing general damages: use of comparable cases and the Judicial Studies Board Guidelines 69 Current levels of damages as a guide to quantum 69 The need for uniformity 69 The development of the Judicial Studies Board Guidelines 70 The effect of the Guidelines 70 Decisions of the lower courts 71 The Guidelines and several injuries 71 The approach of the trial judge 72 Adjustment for inflation 73 Brackets or ranges of damages? 74 Other jurisdictions 74 Jury awards 74 No 'comparable cases' in financial loss claim 74 No doctrine of precedent in damages 74 Citation of cases as illustrations 75 The correct approach: taking judicial notice 75 of awards 75 Chapter 9 Damages for pecuniary loss: past loss and multipliers 77 Measure of damages: the proved loss or expense 77 The principle - exact recompensation 77 Past loss 77 Future financial loss - the problem of assessment 77 Calculations in relation to future loss - the multiplicand 78 The multiplier 78 v definitive guidance 79 The Damages Act rate 79 An end to arbitrary discounting for contingencies of life 79 Approval of the 'Ogden Tables' 80 Which Tables are used? 80 Use of the life expectancy Tables 81

5 Where life expectancy is reduced 81 Multipliers in other cases 81 Judicial reluctance to work outside Tables 81 Chapter 10 Claims for loss of earnings 83 The basic position 83 Loss of earnings: the starting-point of the calculation 83 Probable future earnings (apart from the accident) 84 Future increases or reductions 84 Future inflation not taken into account 84 Special factors in the trade 84 Self-employed and company earnings 84 Pension losses 85 Potential future earnings (after the accident) 85 Full allowance should be made 85 The court looks at the reality of the situation 86 The duration of the incapacity 86 The duration of the loss 86 Benefits other than money 86 Fraud and working illegally 88 The limited nature of the illegality defence 88 Unused earning capacity 89 Deductions from loss of earnings 91 Chapter Future loss of earnings and earnings capacity for the employed and self-employed 93 The apparently different approaches in relation to future loss of earnings 93 The appropriate multiplier for future loss of earnings 94 The appropriate approach to loss of earnings on a multiplier/multiplicand approach 95 Disability in the labour market 99 The Blamire award - future earnings where there is uncertainty 100 Claims for loss of chance 104 Loss of earnings and the self-employed 107 XIV

6 Chapter 12 Claims for care and nursing expenses The growing importance of care claims What The vague definition of care Contents An issue of fact? 112 Issues that assist in defining and quantifying 'care' Quantifying care 113 Commercial healthcare 113 Care provided by family members or friends Quantification of the claim There is no set deduction: the decision in Evans v Pontypridd Roofing 116 The Law Commission approach Providing evidence to the court 120 Claims for a mixture of future gratuitous and professional care: how future needs are assessed Claims in minor and non-severe cases Claims for household assistance The importance of the Daly principle Claims do not extend to assistance provided in claimant's business 125 A claim can be made for loss of ability to act as a carer 125 Chapter 13 Accommodation costs Establishing that the need for the accommodation arises from the injuries 127 Capital costs and alterations 127 Outgoings and living expenses Chapter 14 Other heads of damages 131 The increased sophistication of claims for damages 131 Inability to do work around the home and 131 Clothing and items damaged in the accident 133 Aids and appliances Medical and hospital expenses 134 Transport costs xv

7 Cost of managing disabled person's damages 135 'Extra nourishment' and convalescence 135 Wrongful birth 136 Damages that are recoverable 137 Chapter 15 Provisional damages 139 No obligation to claim provisional damages 139 When is a claim for provisional damages appropriate? 139 Potential problems with causation are not a bar to an award being made 140 The exercise of the discretion 141 Specific conditions 141 Consequences of a provisional award 142 Making a claim for provisional damages 142 Causation at a later date 144 No upper limit on time for subsequent application 145 Chapter 16 Periodical payments 147 Amendments to the Damages Act 147 The obligation on the court to consider periodical payments 147 Periodical payments do not change the basic law relating to the assessment of damages 148 The court can impose a periodical payment order at trial or assessment of damages but cannot insist that the parties settle on that basis 148 Factors involved in the court's duty to consider periodical payments 148 Matters that must be set out in the award 149 The court can order differing amounts over time 149 Ensuring security for the claimant 150 Variable orders 152 Income tax and state benefits 155 Chapter 17 Deductions and set-offs against financial loss 159 Damages are designed to compensate 159 Should a deduction be made? 159 Insurance and similar payments disregarded 160 Income tax 166

8 Chapter The effect of benefits and the statutory recoupment of DSS benefits Contents Benefits that are not subject to recoupment 169 Future unlisted benefits 170 Benefit recovery of The relevant period benefits Listed deductible benefits to be paid in the future 171 The benefits equivalent to heads of damage Recoverable benefits 171 How the recoupment system works Recoupment and the assessment of damages 173 Recoupment and interest Recoupment and Part 36 offers Repayments by the compensation recovery unit belong to the claimant 178 The judgment in Hilton 178 Chapter Damages in anticipation of death and for shortened life expectancy 181 Effect of judgment or settlement prior to death The issues facing a claimant with reduced life expectancy caused by the defendant's negligence The effect of reduction of life on the award for pain, suffering and loss of amenity The claim for losses prior to death The appropriate multiplier for future losses when there is reduced expectancy Differing judicial approaches 183 Guidance in the actuarial tables Assessing life expectancy The award for losses after death Are funeral expenses recoverable for a claimant with impaired expectancy? 184 Claims for loss of income during the 'lost years' No 'lost years' award to child claimants 186 DIY in the 'lost years' 186

9 Summary of differences between 'lost years' claims and Fatal Accident Act claims Practical solutions for a living claimant with dependants 187 The 'lost years' calculation 188 Chapter 20 Damages on death: basic principles 189 Rights of action on death 189 Historical background 189 The two elements of the claim 189 The type of incident that can give rise to a Fatal Accident Act claim 190 Standing in the shoes of the deceased 190 Claimants under the Fatal Accidents Act must be dependants 190 The statutory definition 190 The dependant has to show a loss of a benefit 191 The type of loss that must be shown: the 'reasonable expectation' test 192 What kind of loss supports a claim 192 The burden of proof 192 A 'jury issue' 194 Disregard of benefits arising out of the death: The Fatal Accidents Act 1976, s Payments made by the defendant 196 Chapter 21 Valuing a dependency claim 199 The dependency is set at the date of death 199 Not just mathematics 199 The deceased's income 199 Losses are not confined to pure income 200 The dependency calculation 201 Difficult issues in dependency claims 203 Cultural factors in relation to support from an adult child 209 Chapter 22 damages in fatal cases 211 Funeral expenses 211 Bereavement damages 212 Injuries and losses of the deceased prior to death 212

10 Chapter 23 Damages and procedure Contents The Protocol 215 Issuing proceedings - High Court or county court? Rules governing the choice of court The contents of the claim form Calculating value for the purpose of the statement of value 217 The contents of the Particulars of Claim 217 Drafting Schedules: guidance from the rules 218 The dangers of exaggeration Statement of truth 219 The defendant's response to the claim for damages 219 A distinct difference of views 221 Witness statements and damages 222 Proving the loss 226 Appeals and damages 228 Chapter 24 Interest on damages The statutory basis of the award The obligatory nature of the power The county court 231 Explanation of the power Interest can be varied to suit the justice of the case 232 Interest when there are Compensation Recovery Unit payments or where money is to be repaid to employers 233 Delay and adjournments 233 When a party is brought into an action after the issue of proceedings 234 Interest when there is an interim payment 234 No tax on interest 234 Interest in fatal accident act cases 234 Appendix I The Judicial Studies Board Guidelines for the assessment of general damages in personal injury cases tenth edition 237

11 Appendix II Government Actuary's Department actuarial tables With Explanatory Notes for use in Personal Injury and Fatal Accident Cases (the 'Ogden' Tables) seventh edition 275 Index 395 xx

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