TORT LAW LIBRARY DAMAGES IN TORT

Transcription

1 TORT LAW LIBRARY DAMAGES IN TORT by David K. Allen, MA (Oxon); LL.M (McGill) of the Middle Temple, Barrister-at-Law Vice Président Immigration Appeal Tribunal Honorary Visiting Fellow, Department of Law, University of Leicester General Editor, Personal Injuries and Quantum Reports John T. Hartshorne, LL.B (Exeter); LL.M (Leicester) of the Inner Temple, Barrister-at-Law Lecturer in Law, University of Leicester Robyn M. Martin BA; LL.B; M.U.R.P. (Adel.) Professor of Law, University of Hertfordshire London Sweet &c Maxwell 2000

2 CONTENTS Préface Abbreviations Table of Cases Table of Statutes Table of Statutory Instruments Table of E.C. Législation Table of International Cases Table of International Législation PAGE v xi xv xxiii xxxvi xxxvii xxxviii xxxix PARA 1. INTRODUCTION The nature of damages Some other terminology Différent types of loss One bite at the cherry Types of damages DAMAGES IN PERSPECTIVE CONSTRAINTS OF THE LEGAL SYSTEM Political constraints and the preferencing of certain types of injury European and international constraints on damages ECONOMIC CONSTRAINTS ON DAMAGES CULTURAL C:ONSTRAINTS ON DAMAGES A CX)MPENSATION SYSTEM TO WHAT END? Damages to what end? Some criticisms of the tort system of damages FACTORS OF GENERAL RELEVANCE TO THE ASSESSMENT OF DAMAGES The disclaimer defence The consent defence The illegality defence The necessity defence The warning defence The contrihutory négligence defence Calculation of interest on damages Costs Limitation periods 3-052

3 viii CONTENTS 4. LIMITATIONS TO THE PRINCIPLE OF COMPENSATION CAUSATION AND REMOTENESS OF DAMAGE Causation as a matter of fact Remoteness of damage Intervening events THE REQUIREMENT TO MITIGATE Examples Claimant's impecuniosity Costs incurred through mitigation Determining when losses hâve been reduced or avoided through "mitigation" DÉDUCTION FOR COMPENSATING DAMAGES The relevance of causation Public policy Reform NON-COMPENSATORY DAMAGES NOMINAL DAMAGES CONTEMPTUOUS DAMAGES EXEMPLARY DAMAGES Oppressive, arbitrary or unconstitutional action by the servants of the government Cases in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant Cases where exemplary damages are expressly authorised by statute Further restrictions on the award of exemplary damages Assessment of exemplary damages Vicarious liability The future of exemplary damages RESTITUTIONARY DAMAGES DAMAGE/INJURY TO PROPERTY RIGHTS INTRODUCTION DAMAGE TO LAND Expenses Loss of profits Non-pecuniary losses Limited interest of claimant WRONGFUL INTERFERENCE WITH LAND Temporary deprivation Permanent deprivation Housing Act 1988 sections 27 and DESTRUCTION OF GOODS 6-032

4 CONTENTS ix 5. DAMAGE TO GOODS CONSEQUENTIAL LOSSES Loss of profit-earning goods Loss on non-profit-earning goods MlSAPPROPRIATION OF GOODS DAMAGE TO ECONOMIC INTERESTS INTERFÉRENCE WITH CONTRACTUAL RELATIONS INFRINGEMENT OF INTEI.I ECTUAL PROPERTY R1GHTS NÉGLIGENCE MLSREPRESENTATION Fraudulent misrepresentation Négligent misrepresentation under the Misrepresentation Act Innocent misrepresentation DAMAGE TO REPUTATION, MENTAL DISTRESS AND PHYSICAL INCONVENIENCE DAMAGE TO RÉPUTATION Awards for damage to réputation in defamation Awards in cases of false imprisonment and malicious prosecution MENTAL DISTRESS PHYSICAL INCONVENIENCE QUANTIFYING DAMAGES FOR MENTAL DISTRESS AND PHYSICAL INCONVENIENCE DAMAGES FOR PERSONAL INJURY DAMAGES FOR PECUNIARY LOSS Pre-trial losses Post-trial losses DÉDUCTION OF COLLATÉRAL BENEFITS Insurance Charitable and other payments Sick pay Disability pensions Retirement pensions Redundancy payments Social Security benefits Rights of third parties NoN-PECUNIARY LOSSES Pain and suffering Loss of amenity The tariff System Reform proposais for non-pecuniary losses ALTERNATIVE FORMS OF AWARD Structured settlements Provisional damages Intérim damages 9-101

5 x CONTENTS 5. INTEREST DAMAGES ON DEATH CLAIMANTS UNDER THE FATAL ACCIDENT ACT Calculating the dependency Funeral expenses Non-pecuniary losses Collatéral benefits Claims brought on behalf of the deceased's estate THE FUTURE OF DAMAGES IN TORT The Human Rights Act The laws of European States Commonwealth and North American Law Woolf Funding of damages claims Recoupment Conclusion Page Index 295