Chapter 17 Guidance on answering the questions in the book

Question 1

Susie, aged 32, lived with her children, Topsy and Tim, along with her elderly father Olu. She was working as a taxi driver when, due to Pam’s negligence, she was badly injured in a motoring accident. Susie was hospitalized at Edenvale NHS Trust, in a coma, until she died six weeks later.

What damages will Pam be liable for? Give details, including any deductions.

Outline:

• A general understanding of the principles of damages awards for personal injuries is required: pecuniary and non-pecuniary.
• The Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1932 will explain who can claim in respect of Susie’s injuries and death.
• Deductions from damages will be outlined.
• The question does not require you to give advice on Pam’s liability in negligence, which is assumed.

Under the Law Reform (Miscellaneous Provisions) Act 1932 s 1, Pam will be liable to Susie and, because negligence actions survive the death of both the claimant and the defendant, to her estate after she dies. Susie’s damages will be pecuniary: any expenses for her care (NHS or private) and for loss of earnings until her death. Her non-pecuniary damages derive from the injury themselves and will consist of: pain and suffering until her death – to the extent that she was conscious and experienced this (Wise v Kay). Any award for loss of amenity will not be dependent on the extent to which she was aware, West v Shephard. Under the Administration of Justice Act 1982, Susie’s estate may recover the mental effects of awareness of her reduced life expectancy.

The Fatal Accidents Act 1976 allows an action brought by those financially dependent on the deceased. It appears that Susie was the family breadwinner and so Olu, Topsy and Tim can recover for loss of support to the extent of their financial loss. Bereavement damages do not appear to be relevant as there is no spouse or parent (Susie was not a minor).

The objective of all tort damages is to put the claimant, as far as possible, in the position they would have been in had the tort not occurred. Charity, gifts, proceeds of Susie’s own insurance and any occupational schemes will not be deducted. However according to the Social Security (Recovery of Benefits) Act 1997, virtually all social security benefits received in the 5 years following the event will be deducted from damages paid by Pam, and recovered by the State. The objective is that the claimant not be over-compensated.

Questions 2

What are the policy issues which have recently been influential in the development of the law relating to limitations in tort?

For the general approach, refer to ‘Approaching an essay question’, above.

Outline

• What are the basic limitation rules?
• What are the different factors which could cause a claimant to bring an action outside of the statutory limitation period?
• How does policy affect these factors?

To begin, set out the basic limitation periods: for personal injury see the Limitation Act 1980 s 11; for non-injury see the Limitation Act 1980 s 2 and for defamation see the Defamation Act 1996 s 5. The concept of accrual should be introduced, as well as the provisions for extending a limitation period, eg Limitation Act s 33(1).

Latent damage, of any type, occurs when the damage or its full extent does not materialise until many years later. For this reason accrual is defined as the ‘date of [the claimant’s] knowledge’ in the Limitation Act 1980 s 14. Letang v Cooper establishes the principle that a claimant will not be permitted to evade limitation rules by an unfounded choice of cause of action.

There are various reasons that a claim may be delayed. One example would be that property damage may not clearly manifest itself until long after the original tort, as in Anns v London Borough of Merton. A particularly complex limitation has arisen in the last 25 years, when cases of historic abuse began to find their ways into the legal process. In Stubbings v Webb the claimant was sexually abused as a child but it was not until adulthood that she felt able to confront her abusers legally. In that case a strict application of Letang v Cooper meant that she was unsuccessful. However In A v Hoare and others the House of Lords applied the wide s 33 discretion to extend the limitation period in the claimant’s favour.

Hoare is significant because in it the Law Lords implicitly recognised society’s obligations to victims of historic abuse. Psychological evidence of the disabling effects of abuse was understood and the law was adapted accordingly. This policy is evident in a number of subsequent cases, such as Raggett v Preston Catholic College Governors.