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Damages (Non-Pecuniary Loss (Factors affecting assessment (Intensity of…

- - - - Mullins case said damages are increased where pre-existing anxiety and depression make pain and suffering worse
    - - Lower damages if only a limited appreciation of loss
    - - Law commission argue age should be irrelevant but is still sometimes taken into account
    - - Either more compensation as C knows of early death, or less because loss of amenity is for a shorter period of time
    - - The more active will get more damages as can do less than before
    - - Reduced damages if an ongoing condition was present before the act
    - - Reduced damages if C fails to take steps to minimise their injury
    - - Depending on the situation of the injury will depend on how much is awrded
    - - Women used to get more money for facial disfigurement but this has now stopped
  - - - Solicitor's own case files
      - Experience of other colleagues
      - Barrister's opinion
      - Court Judgments and Reference Books
  - - - No recovery unless effects of injury continue for at least 3 months after the accident
    - - Rejected any threshold because
        
        Encourage people to exaggerate symptoms
        
        Pain is most intense in first few months
        
        Minor issues with no pecuniary loss would get no damages
      - Raised the maximum PSLA from £150,000 to £200,000
- - - - Past loss of earnings
      - Cost of Care
      - Expenses and any other financial cost already incurred
  - - - Future loss of earnings
      - Future care costs
      - Future expenses or other financial costs
      - Non-Pecuniary Loss
        
        Makes up 66% of all damages
- - - - Cassell v Hammersmith (1993): C built a swimming pool to increase enjoyment of life, but couldn't claim as had no therapeutic effect
      - McMahon v Robert Brett (2003): C claimed for aromatherapy as she stated it helped with pain relief, despite medical experts saying there was no medical value
      - Sowden v Lodge (2004): Damages can be reduced considering free public provisions
      - Rialas v Mitchell (1984): Can claim for private medical costs, even when the NHS could have done an equally good job of care
        
        Criticised for funding private medicine or over-compensating claimant if they later use the NHS
        
        NHS can now recover losses from insurers of those who pay tort damages under Road Traffic (NHS Charges) Act 1999
    - - Experts help to assess needs of C
        
        Nursing
        
        Equipment
        
        Accomodation
        
        Transport
      - Donnelly v Joyce (1974)
        
        C can recover for services voluntarily given by a loved one for caring for C from motives of affection or duty
        
        How much?
        
        Can recover wages from job given up to become carer, but only up to the market cost of supplying nursing care
        
        Possible 25% reduction if carer doesn't pay tax or is untrained
        
        What if carer is the tortfeasor
        
        Carer cannot claim costs if they were the tortfeasor
- - - - Inc. what earnings C would have and what level of promotion was expected
    - - How much money can C now earn
      - What is the risk of losing their job
      - When will C retire
      - How complete will the recovery be
      - What level of care will be required
      - When will C die
  - - - Net annual loss
        
        Deduct tax, national insurance, expenses of obtaining earnings & residual earnings
        
        Add to earnings, estimate for promotion, future prospects for children
    - - Number of years C will be affected for
        
        Affected by contingencies of life and the present-day value of the damages
    - - Allowance multiplier, allowing for possibility of investment of lump sum damages
      - Up to 2017, discount rate reduced damages, but now increases them
      - Reform
        
        Rate reduced to 2.5% in 2001 and further reformed to -0.75% in 2017
        
        Civil Justice Act 2018, created a new system to review to discount rate and is expected to rerun to a +1% rate in 2019