Essay: Compensation for negligence

The modern law of negligence was established in Donoghue v Stevenson (1932) case. In this case in 1928 Mrs Donoghue’s friend bought her a ginger-beer from Wellmeadow Café in Paisley but when she poured the drink into another bowl the decomposed remains of a snail floated causing Mrs Donoghue alleged shock and severe gastro-enteritis. Therefore, she issued proceedings against Stevenson, the manufacture, which went to the House of Lords. The argument was that a manufacturer who puts a product on the market which does not allow the consumer to see it before using it, is liable for any damage caused. The ginger beer bottle was dark and opaque which didn’t allow Mrs Donoghue to see the snail before drinking it. Lord Atkin of Aberdovey who gave the leading judgment in the case, found in favour of May Donoghue. This created the Neighbour Principle which is a principle of English law that states a person should take reasonable care to avoid acts that could reasonably foresee as likely to cause injury to the neighbour. A negligence claim consists of four different elements of which the plaintiff must prove to establish negligence; duty of care, breach of duty, causation and damage.
In negligence cases, compensation is the usual remedy awarded. The purpose of tort damages is to put the claimant, as far as money can do so, in the position he/she would have been in if the tort had not occurred. Positives of compensation include that it gives money which can be used to support the new adapted lifestyle. Money is also seen as the ‘next best thing’ in order to amend the situation. An example of this Kerstin Parkin who suffered brain damage during childbirth due to hospital staff failing to take basic steps to prevent damage and a cardiac crash team could not reach her because they did not have the security code to get into the labour ward. She was awarded with a lump sum of £7 million plus £250,000 a year on the expectation that she will live another 50 years. The compensation reflects the cost of providing treatment, equipment and 24-hour care which Mrs Parkin will need for the rest of her life. However, money doesn’t physically fix the situation as it doesn’t replace the actual loss but tries to resolve the problem with money as the next best solution. It is impossible to put the defendant in the exact same position they would have been before the accident. Also, to be awarded damages a duty of care must be proven which may dismiss some negligence cases. An example of this is the Hillsborough disaster case, the tragic events at Hillsborough Stadium during the FA Cup semi-final in 1989 resulted in the deaths of 96 people, injuries to hundreds of fans and traumatised many more. If the claimant was in the area of danger or at risk of danger, then to claim they must have suffered a recognised psychiatric disorder, and there must be reasonable foreseeability of the risk of physical injury following the defendant’s negligence, even if psychiatric harm itself was not reasonably foreseeable. However, in relation to proximity, it was presumed that only parents and children, spouses and engaged couples possess such ties. This means relationships between siblings were not presumed to fulfil this condition. In the Alcock & ors v Chief Constable of South Yorkshire (1992), Brian Harrison was at Hillsborough and witnessed the crush in the Leppings Lane End knowing his two brothers died. He failed in his claim because of the lack of presumed close ties of a relationship, as prior to the case it was not known that such a bond needed to be proved. Another negative is that the amount awarded is often inaccurate as the amount is based on estimation. Overall, compensation is a good reward as it tries to put the defendant in the same position as far as money can do because it is not physically possible to amend the situation completely.
In compensation, both pecuniary and non-pecuniary damages need to be calculated. Pecuniary damages, also known as special damages, are those which can be exactly calculated and are often agreed between both parties prior to trial. Whereas non-pecuniary damages are those which are designed to compensate for the kinds of damage which cannot be calculated, such as the pain and suffering received. A positive of pecuniary damages is that it because it can be accurately measured this means it puts you back exactly to the financial position that you were in originally before the accident. Also, contributory negligence is included which means the blame is disputed accordingly. If the claimant contributed to the loss or damage through their own negligence then the burden of proof is on the defendant to demonstrate this. Another positive is that to claim pecuniary damages it must be reasonably foreseeable, this protects the defendant to some extent by preventing them from paying damages which could not have been foreseeable to happen from their negligent act. An example of this is the Griffiths v Lindsay (1998), which occurred when the claimant, an intoxicated taxi passenger, was hit by a car after getting out the taxi vehicle and attempting to cross the road. She tried to sue the taxi driver for negligence. The court held that it would be unfair and unreasonable to blame the taxi driver for the incident and that it would be wouldn’t be reasonable foreseeable for this to happen. Non-pecuniary damages has positives such as the amount of pain and suffering and loss of amenity is taken into account, this means physiological damages are compensated for and the lifestyle the claimant had is examined when calculating a total sum. This is a positive because the damages aren’t only physical but mental too. However, non-pecuniary damages can’t be accurately calculated as the amount awarded is simply an estimate. For example, the judge is unable to accurately predict the claimant’s future career advancements. An example case is the Wise v Kaye (1962) case, in which the plaintiff was a young woman who sustained injuries in a car accident and as a result she remained in a state of unconsciousness from the time of the accident to the date of appeal. She didn’t receive damages for pain and suffering for this period as she was not aware of it. The result of non-pecuniary damages are subjective as the outcome can differ depending on the judge.
The amount awarded may be in a lump sum or structured settlement. A lump sum can be paid quickly all at once which allows the process to be over and done with. It also allows access to a large sum of money which may be beneficial for victims of negligence in order to help them fast. For a smaller amount, a lump sum would be more suitable. However, getting a large sum of money at once may allow the claimant to spend it all at once and then run out when they need it later on which means the claimant must be a reasonable spender. Whereas for a larger sum, a structure settlement may be more suitable. Spreading out payments over time can reduce the temptation to make large, extravagant purchases, and it guarantees future income. This would be especially helpful if the claimant has a medical condition that will require long-term care. They also allow a lifelong income which allows the claimant to budget their spending. However, once the terms of the settlement are finalized, there’s little that can be done to alter them if the claimant’s needs change over time. Also, they may be inconvenient for the claimant if their condition requires a large sum at once to pay off medical expenses or home moderation for their needs, the monthly income would be lower, so unable to stretch through the year. Furthermore, if the claimant dies this means the payments will stop which may leave family members in debt still trying to pay off the ongoing medical expenses. A positive of structured payments is that it can be given to children to access when they turn 18. However, if the underage claimant is unable to manage the compensation then the parents take over. An example of this not working is Cathy Watson and Robert Hills (2013), who spent their daughter’s £2.6million compensation so they could live a lavish lifestyle. The compensation was awarded to their daughter Samantha Svendsen, who suffers from cerebral palsy and needs round-the-clock care after suffering brain damage due to medical negligence at her birth. Yet her parents spent her compensation on buying sports cars, jewellery, houses and racking up huge credit card bills. Overall, lump sums or structured settlement are beneficial depending on the amount of the sum and the claimant’s needs. Larger sums are more beneficial as structured settlements in order to create a lifelong income whereas smaller sums may be better as a one off payment in order to access all the money at once.
Compensation can also be awarded in interim damages which are rewarded before the final damages. If the defendant admits that the accident was his or her fault, but does not agree with the amount that is being claimed, then some money may be received early before the final amount is confirmed. The claimant’s solicitor can apply for Interim payment. The court decides how much the final amount is at a later date once more information about the case is obtained about what the damages are worth. A defendant may make a voluntary interim payment at any time, including before proceedings have been issued. A claimant can make an application for an interim payment at any time after proceedings have been issued. The interim damages are deducted from the final compensation amount. An advantage of interim payments include that it can provide money whilst awaiting court case and full settlement, an interim payment may help pay for private hospital fees or special equipment which is needed. Interim payments also allows the claimant to go back and receive more money – if they deteriorate after the court case. However, interim payments can create uncertainty for the defendant as he/she do not know what the final amount will be. An example of a case which uses interim payments is Aiden Oxborrow v West Suffolk Hospitals NHS Trust (2012), Aiden was awarded £740,000 in interim payment after the West Suffolk Hospital NHS Trust admitted liability for his injuries. Aiden suffered brain damage after being starved of oxygen at birth, which caused him to have cerebral palsy and epilepsy, his mobility and sight severely impaired and his cognitive abilities also impaired which requires he will need 24 hour care for the rest of his life. The claimant applied for the interim payment to cover the costs of special needs housing accommodation before the final amount was confirmed.
Overall, the law of negligence has negatives such as not all victims receive compensation and some receive less than they are entitled to. Also, compensation often comes from insurance companies or large organisations such as the NHS. This creates rising costs to insurance companies which effects everyone in the long term. However, the aim does try to get justice for the victims of negligence through compensation to try help the victim as much as the courts can do.