Understanding the Law
June 1, 2018
Assessment of damages – Pt 2

Special Damages continued.
One principle that is important to parties in Assessment of damages, and in particular special damages, is that a defendant must take the claimant as he finds him and when a defendant accepts a duty to compensate, he must do so within a reasonable time. This is why people are expected to pay interest on sums awarded by court. Because the defendant is due compensation when the matter occurs. The court will calculate this from the time the accident occurred and not at the end of the court matter. The interest is 3 percent from the time of the accident to the time of filing and 6 percent from the time of filing to the payment in full. The Master can make provision for any long-term medical care in her judgment.

Mitigation of damage

There is another important principle for tortfeasors to observe that is, mitigation of losses. A party must take reasonable steps to mitigate loss, that is, to make amends as early as possible. The text Mc Gregor on Damages (Chapter 7 page168 para. 275) speaks to this issue, “a plaintiff must take all reasonable steps to mitigate the loss to him consequent upon the defendant’s wrong and cannot recover damages for any such loss which he could have avoided, but has failed, through unreasonable action or inaction”.

General Damages

Beside special damages, general damages are also awarded in the assessment of damages. There are some well-used principles. These principles are set out by Wooding, CJ in the case of Cornilliac v St. Louis [(1965) 7 WIR 491] namely: (1) the nature and extent of injuries suffered 2), nature and gravity of the resulting physical disability, 3) Pain and suffering endured, 4) Loss of amenities, 5) extent to which claimant’s pecuniary prospects have been affected.

The nature and extent of injuries suffered
The master will give consideration to the doctor’s report. The doctor will detail the injuries suffered by the claimant in this report. The doctor would explain how the injuries were managed and give information on the medical condition. He would supply information on any surgically procedure done. The extent of the injuries, including the length of time spent in the hospital, is also important. To fully address this, the Master will consider the age of the defendant.

Nature and gravity of the resulting physical disabilit
y
Is there a disability? How serious is the disability? Is there a limp? Is the defendant mobile? Is the defendant fully recovered? Is there organ damage? According to the medical evidence, will the condition continue for some years to come, or the rest of the claimant’s life?

Pain and suffering
Pain and suffering will be the result of trauma to the body and are taken into consideration in awarding compensation. People who are severely injured could suffer from pain and may have to be hospitalized. Pain could continue long after hospitalization, because of broken bones and trauma. A person affected might not be able to walk or work for a period of time, because of pain. However, it is often difficult to reach a precise amount.

Loss of amenities
Under this heading the adjudicator considers whether the defendant is able to enjoy life as he did prior to the accident and whether he could lead an active life; whether he will be able to perform the same as he did before the accident, or whether there would be a reduction in his enjoyment of life. Would he be able to play the sports he used to play? Would he be able to participate in an active way with his children?

The master will try to arrive at a reasonable sum, taking into account comparative cases and the age of the claimant.

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: [email protected]