Civil procedure and Tort Damages

• A court of first instance is a court in which a trial is hear for the first time
• The civil courts of irst instance are County and High Court
• The track system provides three seperate tracks for civil claims dependant on the size of the compensation claim and the complexity of the case.

The small claims track involves:

• claims up to £5000
• £1000 if personal injury or housing
• flexible procedure
• District Judge
• County Court
• Claimant represent themselves

The fast track involves

• Claims between £5000-£25000

• personal injury or housing is lower
• County Court
• Strict timetable, case be heard within 30 weeks.

The multi track involves:

• complex cases for £25,000-50,000- County Court
• £50,000 or above - high court
• defamation- high court

Appeals

Appeals from the County Court- The appealant can appeal to the High Court. Neglience cases are heard in the QBD. Further appeal can be made to the Court of Appeal Civil Division although most cases leave to appeal must be granted. This means that permission must be given by either the lower court or the Court of Appeal itself. Permission will only be granted if the appeal would have real prospect of success or there is some other compelling reason why the appeal should be heard. Further appeal can be made to the Supreme Court although must have leave to appeal and concern a point of law of general public importance.

Appeals from the High Court- Appeals will be heard by the Court of Appeal Civil Division and further by the Supreme Court. The same leave to appeal discussed for the County Court.

Leap- frog Appeals- A few cases each year go straight to the Supreme Court thus by-pasing the CofA. These are known as leap frod appeals. These are provided for by Adminstration of Justice Act 1969 and can be used in cases where the CofA is unable to change the law because it is bound by existing law. Also note that if a point of European law is involved, further reference may be made to the European Court of Justice.

The burden of proof is on the claimant. This means that the claimant must prove that the D's neglence had caused them the injury or loss. There are however two exceptions to this rule.

Firstly, if the D has already been convicted in a criminal case relating to the same incident, the court will acpt the court's finding the D is liable. This rule is provided by the Civil Evidence Act 1968.

Secondly, Res Ipsa Loquitur. This is translated as the things/ facts speak for there self. This rule is based on an acceptance, that in particular circumstances, the incident could not have occured without the D having been neglient. To determine if res ipsa loquitur applies, the court establishes;

• The thing that caused the harm was wholly under the control of the defendant.
• The accident that caused th damage complained of wuld not have happened unless someone had been neglient
• There was no other explanation for the cause of damage.

Scott v London and Saint Kathrine's Docks (1865)- The claimant was walking along the docks when he was knocked unconsious by a bag of sugar it was likely that this had fallen from a crane working directly overhead. The court decided that the C didn't have to prove neglience.

Mohan v Osborne 1938- The C went to the hosipital to have an operation on his stomach, afterwards he remained in pain and died at the postmortam a swab was found in his stomach. Doctor was neglient.

Standard of Proof in civil cases

The Claimant has to prove his claim on a 'balance of probabilities'. This can be interpreted as determining if the facts are more likely to be true than not.

Civil Court Procedure

• The claimant gets a claim form
• The claimant completes it with details
• Sent back to court
• sent to D with response pack
• D returns admiting or aknowledging
• If D disputes, fill additional forms
• Defence sent to claimant court decided

• Questionnaire and documents put on system
• No reasonable forfeit claim
• Judge allocates to track

General damages- are those which cannot be calculated exactly in terms of monetary value. Examples are;  Pain and suffering, future loss of earnings [from the date of the trial onwards] and cost of care where the C is disabled.  In Housecroft v Burnett 1986 it was held that where a carer has given up work to care for the claimant, the loss of earnings of the carer can be recovered in damages.

Special damages- relate to those losses which can be calculated exactly. Examples are; cost of repairing/ replacing damged goods, cost of transport, earnings lost up to the date of trial and other expenses incurred.

Calculating damages- Whether damages are general or special they can also be classified as pecuniary or non pecuniary. Pecuniary losses aare those that involve direct financial loss. Non pecuniary losses are those which are not financial but where the court will, nevertheless, provide financial compensation as this is all that can be done.

Pecuniary loss- Where the loss is pecuniary, i.e. financial loss, the court calculates the loss  by comparing the financial position of the claimant before the tortuous conduct with that afterwards. Mitigation of loss- a person who falls victim to a tort must take reasonable steps to mitigate [reduce] the loss.

Emeh v Kensington AHA 1985- The claimant was sterlised but became pregnant she refused to have an abortion her child was born with abnormalities resulting in a need for consant medical care. It was reasonable for her to refuse an abortion therefore the hosipital is liable for costs of medical care.

Loss of earnings- can be divided into loss to date and future loss.

• Loss to date runs from the date of the incident and the court settlement and will be settled according to the amount of the actual loss.
• Future loss of earnings are more difficult to calculate and can only be based on speculation. It may be that the claimant will be unable to work for months or years but the exact amount can only be the subject of an educated guess.

Even where it is known that the claimant will never be able to work again, nobody can know whether the claimant would have been made redundant or alternatively whether he would have gained promotion.

The Claimants expected loss is calculated in the following way;

• The court multiplies the multiplicand by the multiplier
• The Multiplicand the claimants actual net loss taking into account factors such as redundancy, promotion as dicussed above.
• The Multiplier the number of year that the disability is likely to continue (never more than 17 or 18 years). However the court will take into account that as the money will be likely paid in a lump sum,this can be invested and interest earned and effectively the claimant would be over compensated. An adjustment is therefore made to take account of this.

Non pecuniary loss- Non- pecuniary losses are thos ewhich are not financial but for which the court will compensate financially for them.

• Pain and suffering awards in previous cases are used as guidelines. The amount paid depends upon the severity of the indivdual and the impact to that particular indivdual defendant.
• Loss of faculty ie. loss of a limb. The couts use standard guidelines similar to a tariff to determine the amount of damages awarded.
•  Loss of amenity ie. loss of the ability to enjoy activities that are no longer possible due to the injury. For example the keen tennis player may be compensated for loss of amenity. Not being able to walk is an obvious loss of amenity. The amount awarded will depend on the particular interests and background of the particular claimant. A younger person should be deprivedof the ability to enjoy sport would be paid more than an elderly person. West v Shepherd 1964- a married women aged 41 who was left partially concious and quagrapegtic she was awarded £17,500 for the loss of amenity.

Payment of Damages- Only one action can be brought by the claimant and damages can only be recovered once. It is not possible to start a second action if the injury or disablement turns out to be more serious than was originally expected;  ....'there is only one certainty; the future will prove the awrd to be either too high or too low....'- Lord Scarman.

Damages can be paid either by a lump sum or by a structured settlement;

• Lump sum settlement- the claimant is expected to invest the cash to produce investment income. However there is no guarantee that the money will be invested wisely at all.
• Structured Settlement- these were introduced in 1989 in the case of Kelly v Dawes and provide potentially a more secure form of income. Part of the settlement is invested up front for the claimant and provides a guaranteed monthly income.

Other types of damages

• Damage to property- this is compensated for at the current market value of the property.
• Aggravated Damages- awarded for mental distress.
• Khodaparast v Shad 1999 The C was an Iranian women teacher at a religious school her former lover imposed her face onto pornagraphic pictures suggested she was a prostitute and sent them to a newspaper so they were circulated around the Iranian community. The Judge awarded her £20,000 pounds for malicious falsehood.