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Topic 20- Remedies (Introduction (In civil law, compensatory damages are…
Topic 20- Remedies
Introduction
In civil law, compensatory damages are primary remedy awarded to successful party on basis of the loss or injury they have suffered
- Common law has made provision for award for futher categories
- Punitive
- Exemplary
- Aggravated
- Vindictive
- Retributive
Decisions beginning with judgement of H of Ls in Rookes v Barnard: helped to clarify the law and accepted categories of damages
Breach of the law of tort
Damages are awarded following a breach of a DOC or other tort such as nuisance or negligent misstatement
- AIM OF COURT IN AWARDING DAMAGES IS TO FINANCIALLY COMPENSATE THE PLAINTIFF BY PLACING MONETARY VALUE ON THE INJURY SUSTAINED OR PROPERTY LOST OR DESTROYED AND TO REIMBURSE THEM IN RESPECT OF ADDITIONAL EXPENSES INCURRED AS DIRECT RESULT OF THE BREACH
Claim for Damages
A claim for damages can only be brought once on same set of circumstances
- even if the injuries sustained turn out to be much worse than is oiginally thought
- Often why personaal injury cases can take some time to settle or have a hearing and Ps are normally advised by their representative to wait until injury healed before accepting compensation
Lump sum v periodic payments
Damages are paid in a limp sum
- Although th e aw does provide for payment of structured settlements which means P is paid a regular sum of money on weekly basis either throughout injured parties life or until retirement
Judges in UK and IE do not seem to use this form of settement
Compensatory Damages
These are aimed at placing the injured party in the same position, financially, as though the breach had never occurred
- Mos common form of damages awarded by the courts
- Compensation is divided into general and special damages
General Damages
Are amounts that cannot be specifically proved and consequently are more nebulous than special damages
- Generally form the bulk of the damages awarded in personal injury cases
Paid and Suffering
Pain and suffering is an award made for the pain and suffering experienced as a direct result of an injury
- Subjective and abstract nature= difficult head of damage to value
- One person may suffer more than another following a particular injury as people react diff to stress and trauma
Connolly v Bus Eireann and Ors: Bar J placed cap on max payment to be made under this heading of pain and suffering at £200,000
Mental suffering
- Injured party is also entitled to claim for mental suffering as well as phuscial pain
- Quite often claims included for stress or anxiety e.g. anxiety when driving following motor accident
- Greatest amount of pain and suffering has been held to be mental suffering as result of a severe injury (Cooke v Walshe)
Loss of Amenities
e.g. If a P enjoyed soccor and lost his leg, award will be made for fact he can no longer play game he used to enjoy: Ambit of such damages is wide and seeks to compensate injured party in as full a degree as possible
Special Damages
These are amounts that can be specifically provedPersonal Injury case
- Special damages consist of past and future medical expenses and loss of earnings incurred (and projected into future)
- Also includes other expenses that may have been incurred as result of an injury e.g. building ramps or other strcutures in a home of somebody who now required to use wheelchair as result of accident
- Significant difficulty in proving future medical expenses
- Medical practitioner will be required to estimate cost of future procedures or treatment options
Loss of earnings
- Long v O'Brien and Cronin: The final figure he may receive will depend on his former earning capacity, his present and future physical prospects and the particular requirements within his trade or industry with regard to employee skills and competencies
If P returned to job where remunerated less than before accident, this is as a result of injury suffered, difference in pay can be included in special damages
Usually comparatively small proportion of total damages
- This changes if there are significant future loss of earnings
- e.g. earning 70,000 per annum, no longer able to work as result of injury, loss of earnings will significantly increase overall damages
Aggravated Damages
Philip v Ryan: Falsification of medical record prior to hearing of the action resulted in an award of €50,000 for aggravated damages
GFB v TB: Court awarded aggravated damages in a sexual abuse case where D made accusation against P of having made false allegations
Awarded where wrong done to P has been further aggravated by the D's actions
May be due to
- Manner in which wrong committed
- conduct of wrongdoer after commission of the wrong
- conduct of the wrongdoer and his legal team up to and including hearing of the action
e.g. where person has brought a defamation claim or a claim of trespass to the person for assult and D refused to offer apology
- Court will take into account he fact he D's conduct further added to stress suffered by P
Rational: Punish the conduct of wrongdoer
- Compensate injured party for being victim of such abhorrent conduct
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Nominal Damages
Awarded When P's legal rights have been infringed but no actual damages suffered
Constantine v Imperial Hotels Ltd: P awarded nominal damages
- booked room at an inn but was subsequently told they didn't have room for him
- Award of 5 guineas made to reflect fact D acted wrongly but equally p suffered no actual loss
Contemptuous Damages
Courts recognize the P has technically been wronged in law but the courts do not consider the party to be particularly deserving or meritorious in their action
Reynolds v Times Newspapers: Taoiseach awarded 1 penny damages after D newspaper ran a story which criticized his actions which led to the collapse of the government
- While he had technically been defamed, the court did not consider action to be worthy one given role of the print media to offer political commentary and analysis
Award later overturned on appeal
- Case illustrates the use to which commensurate damages may be put
- P in Irish law, although he may be entitled to compensation as result of wrong suffered, may not be entitled to a large award wither because of the small amount of damage or because of his conduct up until and/or during the action