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General Damages Notes

LPC Law Notes > Personal Injury and Clinical Negligence Notes

This is an extract of our General Damages document, which we sell as part of our Personal Injury and Clinical Negligence Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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GENERAL DAMAGES PAIN, SUFFERING AND LOSS OF AMENITY, FUTURE LOSS OF EARNINGS AND FUTURE COST OF MEDICAL CARE General damages--

Not capable of precise calculation Non-pecuniary loss o Pain and suffering o Loss of amenity o Smith v Manchester o Loss of congenial employment Future pecuniary loss o Financial losses post trial which claimant will continue to suffer in the future o E.g. loss of earnings/cost of care Should NOT include o Future earnings o Future costs of medical care o Loss of congenial employment Be aware of contributory negligence

Main heads of general damages (go through each in turn if relevant) Step 1: Pain, suffering and loss of amenity-

P&S subjective test so claimant cannot claim for when unconscious - Wise v Kaye [1962]
Loss of amenity (loss of enjoyment of life) = objective test - but subjective in that the court looks at the claimant's former lifestyle - Scott v Shephard Considers o Physical o Mental o Accident AND surgery o Past, present and future o Awareness o Enhanced if aware of 'loss of expectation of life' o Effect on claimant's lifestyle o Objective test - even if unaware e.g. coma o Subjective test - once a couch potato, always a couch potato!
Quantification of damages

o The solicitor should identify the details of the following:
? The claimant's life prior to the accident
? Relevant to the loss of amenity claim
? Pain and suffering associated with the accident itself and its immediate aftermath
? What were the injuries???

How did the claimant react??

Number and nature of any operations

Was he taken to hospital by ambulance?
Any periods of time when the claimant was in hospital

The short-term and long-term prognosis?-

Will the claimant recover in full?

If not, what will his/her continuing pain/disabilities be?
? How long will they continue?
Is there a risk of future degeneration?-

Number and nature of any other medical procedures

E.g. osteoporosis
? What has been/will be the effect of the injuries on the claimant's lifestyle?
The courts will refer to awards made in comparable cases, so must research Judicial College Guidelines = good starting point to give you a ball-park figure for types of injury Then use specialist sources e.g. Kemp & Kemp on Damages - once you have identified a relevant figure in a comparable case, make adjustments o Sex - E.g. scarring (especially on the face) on a female claimant carries a higher award than for a male claimant o Age
? In cases of permanent disability, younger claimants tend to get more compensation that older claimants as the young will suffer longer
? On the other hand, some injuries will have a more severe impact on an older claimant than on a younger one o Loss of amenity - heavily influenced by whether the claimant had a previously active lifestyle o Limb injuries - injuries to dominant limbs attract higher awards than injuries to non-dominant limbs o Inflation
? Previous awards must be inflated to present-day values
? The inflation table in Kemp & Kemp, The Quantum of Damages, can be used o Uplift of 10%
? In the case of Heil v Rankin and Another [2000] the Court of Appeal considered the level of damages for pain and suffering and concluded that they were too low and stated that there should be stated increases for all future cases

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