Where the defendant has committed a tort /civil wrong, the claimant/wronged party is entitled to monetary compensation so as to put him in the position in which he would have been, but for the wrong committed. In some cases, an injunction or order prohibiting conduct, or exceptionally ordering the defendant positively to do something, make be granted instead of, or in addition to monetary compensation/damages. The general principle of damages in tort / civil wrongs is that the claimant should be put in the same position in which he would have been, but for the commission of the tort. The extent of compensation available is greater than in the case of breach of contract. There is an element of subjectivity in the quantification of damage or loss for personal injuries. Pain, suffering and loss of bodily functions or limbs are not easily quantified in monetary terms. However, the law takes a pragmatic approach to assessing what is fair and appropriate compensation. The law of damages makes a broad distinction between special and general damages. In some contexts, general damages are those which follow naturally from the tort / civil wrong. They do not need to be specially claimed. In this context, special damages refer to particular losses in addition to general damages which result from particular or unique circumstances.I n the context of personal injury claims, special damages sometimes describe those that are quantifiable in monetary terms.
Once and For All Lump Sum
Under the current law, a claim for damages for is a once and for all claim. It includes all damages, past and future, prospective and contingent. What happens after the award is irrelevant. If the injuries worsen significantly, so that higher compensation would have been merited, there is no further recourse. Correspondingly, if the defendant suffers less loss than anticipated at trial, the position remains unchanged. It appears likely that provision will be made in the future for payment of awards of damages in instalments, at least in personal injuries cases.
Juries and Appeals
Until the early 1990s, juries where empanelled in most civil cases. Legislation has limited the right to a jury trial in a civil case this to defamation and certain deliberate civil wrongs such as false imprisonment, assault and battery. Juries assess the measure of compensation. Due to the belief that the juries were making overly generous awards, juries were removed from most tort cases, including in particular personal injuries cases. The cases are heard by a judge sitting alone. Appeal courts were especially reluctant to interfere with awards by juries, provide that they were properly directed. This approach still largely applies in relation to appeals in cases heard be judges sitting alone. The appeal court, having not heard and assessed the evidence at first hand remain reluctant to interfere with awards.
Pain and Suffering I
In personal injury cases, the law attempts to make some measure of compensation for pain and suffering. This includes pain and suffering to date directly attributable to the incident together with the future pain and suffering and that attributable to treatments. Pain and suffering raises difficult questions of measurement in an award of compensation. In the 1980s, the Supreme Court reduced a number of jury awards for pain and suffering. It was of the view that the sums awarded, greatly exceeded contemporary standards and monetary values. The decisions reflected a policy of seeking to limit the extent of compensation. In the cases, the court curtailed what it saw to be the extravagant level of compensation granted in the case of very severe lifelong injuries. The court effectively set a monetary limit on compensation for pain and suffering for the most serious personal injury case. The court rationalised the approach on the basis that it did not affect monetary compensation for actual loss and quantifiable needs.
Pain and Suffering II
Awards which were disproportionate or extravagant it its view, went beyond compensation and sought to punish the claimant/defendant. The Supreme Court was of the view that the level of awards should be referral to the ordinary standard of living in the country, general levels of income and things upon which the claimant might be expected to spend money. Compensation will be granted in principle for psychological and psychiatric conditions such as depression, nervous shock, post-traumatic stress disorder. The extent to which the claimant is aware of the severity of his condition may be relevant. The courts have expressed different views. The Irish courts are inclined to the view that the awards should be moderated, where the claimant has reduced capacity to appreciate the pain and suffering. Losses life expectation raises similar difficult issues. Traditionally, the courts allowed modest compensation only, for loss of life expectancy.
Loss of Earnings
Personal injuries may affect a person’s earning capacity and options. The extent of lost future earnings will be dependent on the nature of the person’s occupation, his age, and the injury. Actuaries assess future probabilities. Where a personal injuries claim involves loss of future earnings and earning capacity, actuarial evidence will be highly desirable. Actuaries assess probabilities and quantify likelihoods, having regard to vital statistics. Actuaries may guide the judge in assessing damages in common with other experts. Since the mid-1980s, the courts have gradually raised the upper monetary award, in order to counter the effects of inflation since that time.
Collateral Benefits I
The claimant is entitled to recover expenses and costs arising from personal injuries. This include medical and hospital expenses. The Health Amendment Act 1986 provides that health authorities may charge victims of torts, for services to which they would otherwise be entitled to for free, where the monies are recoverable in a personal injuries action. The courts do not reduce awards by reason of the fact that the injured person may be cared for by family members. Benefits which a person, receives by reason, for example, of insurance, are generally excluded in the calculation of damages. The Civil Liability (Amendment) Act 1964 provides that in assessing damages for a wrongful act resulting in a personal injury, no account is taken of sums received under insurance contracts, pensions, gratuities or other benefits payable by statute. There is a similar principle in respect of wrongful death claims. The principle applies in an employer liability claim, where the employer has financed the insurance concerned.
Collateral Benefits II
In assessing damages in an action to recover damages in respect of a wrongful act (including a crime) resulting in personal injury not causing death, account shall not be taken of—
- any sum payable in respect of the injury under any contract of insurance;
- any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury.
In assessing damages in an action to recover damages in respect of a wrong resulting in personal injury not causing death, account shall not be taken of any charitable gift (whether in the form of money or other property) made to the plaintiff in respect of those injuries unless
- the defendant is the donor of the gift, and
- at the time of the making of the gift he or she informs the plaintiff in writing that, should the plaintiff recover damages in such an action, the defendant will apply to the court for the damages to be reduced by an amount equal to the amount of the gift or the value of the gift, as may be appropriate, or
- in the case of a plaintiff who is employed by the defendant, the gift consists of a series of payments that resemble, in amount and frequency, the normal remuneration that the plaintiff would be entitled to receive from the in the course of his or her employment.
Exemplary / Aggravated Damages I
The law of tort is not about punishment, but about compensation. Occasionally, where the defendant’s actions are highhanded, blatant or in the case of governmental action, unconstitutional, the courts may grant exemplary damages. Over the years, the courts have applied limits to the extent to which exemplary damages might be awarded. The courts accept that in an exceptional cases, awarding the extent of financial loss may not be sufficient. Where the defendant has acted in an aggravated manner, in bad faith, particularly in such a way as to injure the claimant’s feelings and pride, the court may award aggregated or so called exemplary damages. In the 1960s, the highest court in the UK sought to limit the types of case in which exemplary damages might be granted, to
- where oppressive arbitrary and unconstitutional actions were undertaken by public authorities or the government;
- where the defendant has engaged in calculated conduct so as to make a profit exceeding compensation payable;
- where exemplary damages are allowed under statute.
Exemplary damages are available only where the claimant has himself suffered. Misconduct towards a third person is not sufficient. Exemplary damages will not be readily granted for punitive purposes, as this is not an appropriate objective of the law of torts. Where exemplary damages are granted, the means and resources of the parties are relevant to the calculation.
Exemplary and Aggravated Damages II
The Irish courts have been willing to grant exemplary damages in cases which do not fall into the above categories. In the cases of deliberate wrongdoings such as assault, false imprisonment, battery, or deliberate defamation, it is established that jury may grant punitive damages. Where the circumstances are particularly humiliating and the defendant’s behaviour has been highhanded exemplary damages might be awarded. The Irish courts have shown a willingness to grant exemplary damages in cases of blatant or deliberate unconstitutional conduct by State parties. The Irish courts recognise that aggravated damages, in addition to compensatory damages might be granted having regard to
- the manner in which the tort is committed involves elements of oppressiveness, arrogance or outrage;
- the conduct of the wrongdoer after the commission of the wrong including refusal to ameliorate the harm or the making of threats to repeat the wrong,
- the conduct of the wrongdoer or is representative in the defence of the claim
The above circumstances do not create any entitlement to aggravated damages. They are potentially relevant to the award of aggravated damages in particular cases.
Exemplary and Aggravated Damages III
Punitive or exemplary damages arising from the nature of the wrong are intended to mark the court’s disapproval of the defendant’s conduct in the circumstances. Not every wrong which constitutes a breach of constitutional rights, in any way attracts exemplary damages. However, a deliberate breach of constitutional rights is more likely to do so. It appears relatively clear in Ireland that exemplary and punitive damages may be awarded in the case of wrongs between private parties.
There may be a technical wrong without significant damage. Nominal damages may be granted where no substantial damage are incurred, but a right is breached. In some cases, the courts will award nominal damages where but they disapprove of the claimant’s behaviour, notwithstanding his technical right and his financial loss. Where the claimant has a technical right, the court wishes to express its displeasure at the claimant’s behaviour and concludes that there is no moral right, contemptuous damages may be awarded.