Legal Compensation and Damages: A Closer Look at Tort Law

Delve into the intricate world of tort law and legal compensation through an exploration of intentional torts, exceptional conduct requirements, mental distress considerations, and recent court cases. Learn about the nuances of compensating for non-pecuniary losses and the evolving definitions and applications within the legal landscape.

• Tort Law
• Legal Compensation
• Exceptional Conduct
• Court Cases
• Non-Pecuniary Loss

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1. Jonathan Wheeler

2. Angry!

3. Damages = to compensate But a blunt instrument Can t order an apology Can t order treatment Can t wave a magic wand Can t erase the past Can t make the pain go away Court Gavel

4. PSLA awards even at their highest? Causation issues Other life events -% Pecuniary loss Loss of earnings: potential not reality Multiplier/ multiplicand approach No parallel universe Policy reasons for refusing awards for illicit behaviour

5. Creativity -wasted expenditure on alcohol? THE QUANTUM LEAP Be creative about non pecuniary loss Aggravated damages Compensating for aggravated nature of the harm Exemplary damages Punishing for outrageous or scandalous conduct

6. Definitions & development of the law How we can apply these to abuse cases Recent cases where awards made (and not) Vicarious liability issues The case for reform Sleeping Judge

7. Rookes v Barnard (1964) Lord Devlin Only for intentional torts Need to be specifically pleaded CPR 16.4 (1) Additional compensation for tortfeasor s exceptional conduct, such as to Injure C s feelings of pride & dignity Give rise to humiliation, distress, insult & pain

8. Exceptional conduct in Rookes: Offensive or Accompanied by malevolence, spite, malice, insolence or arrogance Broome v Cassell(1972): Mental distress or injury to feelings where tort causes insult, indignity, humiliation & a heightened sense of grievance

9. Appleton v Garrett (1997): Dyson J Two pre-conditions: Exceptional or contumelious* conduct or motive on the part of a D in committing the wrong or in certain circumstances subsequent to the wrong and Mental distress sustained by C as a result * contumelious = OED: archaic (of behaviour) scornful & insulting; insolent

10. Basic GDs (PSLA) insufficient = compensate But punitive too? Exceptional conduct by tortfeasor C has to subjectively experience injured feelings Injury to feelings & discrimination cases Not awarded for negligence/ breach of contract

11. Lord Woolf MR: "there can be a penal element in the award of aggravated damages. However they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated

12. Ds behaviour in court proceedings D pursues hopeless points to delay Hostile cross examination Uses litigation to intimidate Or generate publicity to publicly humiliate CXX v DXX (2012) Sanity & integrity/ malicious prosecution!

13. Moore-BlickLJ in Rowlands v CC Merseyside Police (2007): " any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages

14. http://www.asbestosvictimadvice.com/wp-content/uploads/2012/10/JSB-Guidelines-mesothelioma-compensation.jpghttp://www.asbestosvictimadvice.com/wp-content/uploads/2012/10/JSB-Guidelines-mesothelioma-compensation.jpg a useful starting point for GD s It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages

15. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognised or even denied. Aggravated damages may be appropriate

16. Aggravated damages: additional damages which the court may award as compensation for the defendant s objectionable behaviour

17. Kraljv McGrath (1986) Woolf J Obstetrician s conduct horrific & completely unacceptable Could case have been brought in trespass? Approved in AB v South West Water (1993) CA Public nuisance No compo for feelings of anger & indignation But defamation, trespass & discrimination cases?

18. http://www.legalfutures.co.uk/wp-content/uploads/Royal-Courts-of-Justice15-300x199.jpghttp://www.legalfutures.co.uk/wp-content/uploads/Royal-Courts-of-Justice15-300x199.jpg Simmons v Castle (No. 2) (2013) with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously

19. Griffiths v Williams (1995) 50k GD s award (jury) Upheld: 15k for PSLA/ 35k aggravated D s allegations v C = defamatory (Thorpe J) Marriott v Parrington (1999) 25k GD s 30k aggravated File:Ficherelli, Felice - The Rape of Lucretia.JPG

20. Appleton v Garrett (1997) Aggravated awarded at 15% of GD s Between 1,050 & 2,040 Richardson v Howie(2005) CA No longer appropriate to award aggravated damages in cases involving injury to feelings = compensated in GD s award

21. TreacyJ: PSLA = 82k to 125k Aggravated = + 30k to 35k D s conduct = appalling, malevolent, and utterly contemptuous of the claimants rights D s behaviour was a prime example of the exceptional conduct required

22. Swift J: GDs = 70,000 C had been treated as a chattel to be bought, sold and used sexually Threatened & blackmailed D s had maintained NG plea If award not made C = not properly compensated. Not punitive. Aware of double recovery Awarded + 20,000

23. Aggravated Status Update Slade J: GD s of 28,000 Aggravated damages refused Distress of giving evidence But D had been acquitted on all counts Her refusal of an award did not minimise D s despicable acts Not every case warranted an award Damages for mental distress included in GD s

24. Sexual abuse by step father from age 7 to 12 Davies J: GD s 70,000 Cruelty Threats to send her away No escape in her home Photo s = additional distress & humiliation Awarded + 10,000 not double recovery

25. Abuse by grandfather from age 11 to 16 Leighton-Williams QC (RCJ): 67,500 PSLA Abuse of trust and emotional upheaval D = nice & kind v her abuser Loss of pride & self esteem not compensated by PSLA award + 15,000 BROKEN TRUST

26. Lord Devlin again: anomalous But two classes of case which still qualify: Where there has been oppressive, arbitrary or unconstitutional conduct by servants of the government OR Where D s wrongful conduct was calculated by him to make a profit for himself which may well exceed the compensation otherwise payable to C

27. Technically apply to intentional AND non intentional torts More likely to be awarded in cases of malicious prosecution false imprisonment assault & battery Must be specifically pleaded (CPR 16.4 (1))

28. Bingham MR in AB v South West Water (1993) a gross misuse of power, involving tortiousconduct, by agents of the govt. 3 types of conduct read disjunctively Broome v Cassell(1972) HL = servants of govt. should be widely construed Not a water co. set up for profit under statute Public law test for JR unhelpful (Bingham MR) http://3.bp.blogspot.com/_YrPhWhp-AW0/TJUQj1_QWfI/AAAAAAAABVE/LgZpKRMgEJU/s320/SNN2508LB-180_515965a.jpg

29. Lots of cases against police & prison officers How about Social workers Youth workers employed by LA s? Teachers in state education? Awarded v public employers in cases of sex and racial discrimination

30. Profit = beyond money making (Lord Devlin) Did D seek to make a gain by the wrong? Calculated = the cynical pursuit of conduct, knowing it to be wrong or reckless as to whether it is wrong or not Because the advantages to D outweigh the risk involved

31. Not in the normal course of business per se But not intended to be limited to the kind of mathematical calculations to be found on a balance sheet (HL in Broome v Cassell(1972)) Should not be restricted to the actual financial gain made but to teach that tort does not pay (Lord Devlin) Calculator - 01 photo

32. Where D has made a gain from Prostituting your client Selling or exchanging images of your client How about school governors covering up abuse? CatnicComponents Ltd v Hill (1983) -actions of D in saving himself loss = within scope St. Benedict Catholic School, Seattle - Logo

33. The effect of criminal or regulatory sanction Archer v Brown (1985): Pain J discretion AB v South West Water (1993) CA referred to D s conviction & fine & declined an award Ashgarv Ahmed (1985) CA upheld award where D s in prison for unlawful eviction: A great deal more to the outrageous conduct http://www.alcottgroup.com/wp-content/uploads/2010/12/Handcuffs-300x164.jpg

34. http://mimimorrison.files.wordpress.com/2010/06/14-temperance.jpghttp://mimimorrison.files.wordpress.com/2010/06/14-temperance.jpg Lord Devlin: moderation & restraint Where 2 or more tortfeasors sued -D = least responsibility (as unable to claim indemnity?) Where multiple claimants aggregated award in case of over punishment but no. of people affected relevant to its size. Jury awards claims v the police subject to appeal

35. Hucklev Money (1763) Falsely imprisoned for six hours D had used him very civilly by treating him with beef steaks and beer 300 upheld on appeal RPI calculation = 38,360 today!

36. TreacyJ = exemplary damages of 60k (shared) + PSLA & aggravated damages D s had acted without any regard for the C s rights with a view to making a profit beyond any of the damages so far awarded To show misdeeds did not pay Regard to price charged & bond

37. Crash for cash fraud HHJ May QC: Both tests in Rookessatisfied Police weren t prosecuting Awards between 1000 and 2000.

38. Ignore Ds nonsense! As long as you can prove A relationship akin to employment Close connection D steps into the shoes of the tortfeasor View of the Law Commission in 1997

39. C alleged ill treatment by prison officers Was HO vicariously liable for misfeasance? Exemplary damages claimed Neither CA or HL suggested couldn t be claimed

40. Detailed guidelines from CA re assessing damages Exemplary damages not subject to police officer s means But also not a windfall to C if paid from public funds

41. Sexual assault by police officer Threats to deport her Exemplary damages awarded v officer But not the Commissioner Officer was not acting within the course of his employment Pre-dates Lister v HesleyHall (2002)

42. Police officer wrongly restrained, handcuffed & imprisoned C Also gave false evidence 6,000 -aggravated 7,500 exemplary Against the Chief Constable

43. Law Commission 1997 Aggravated damages should apply to negligence & breach of contract Judges have cried out for Parliamentary intervention for exemplary damages Statutorily defined DCA s consultation paper in 2007 = no change

44. Responding to request from Law Commission More routine application of exemplary damages Should be allowed in negligence Employer operating without due regard for h&sof employees to turn a bigger profit HSE lacks resources to prosecute