Special Damages Issues
Nature
Special damages are damages which arise from the particular circumstances of the case. They are “over and above” general damages. They must be specifically pleaded in the claim so that the defendant is not surprised at trial. In contrast, general damages are those which flow from the wrong automatically and need not be pleaded.
In other contexts, special damages refer to out of pocket expenses and loss of earnings arising before trial. In this sense, they are quantifiable monetary damages. Damages that are not quantifiable in the same way, are referred to as general damages.
Loss of earnings up to trial will generally be quantifiable. Loss of earning capacity and earnings post-trial will be more speculative. The courts appraise the extent to which the injuries have caused financial loss, including loss of earnings into the future. This involves assessing the probabilities, the physical condition of the claimant, the labour market and the particular industry, trade or business in which the claimant works.
Effect of Injuries
The effect of physical injuries will vary relative to the type of work or employment undertaken by the claimant. The nature of the physical injury and its impact on the particular claimant’s capacity to earn his living must be considered, in relation to his existing employment or business. Alternative employment or business consistent with the injuries may be taken into account where it is reasonably available.
Physical injuries which would be catastrophic in one context may have a much lesser impact in other employment. An injury may restrict the claimant’s employment opportunities. Compensation may be allowed for the narrowing of options in consequence of loss.If a person’s working life is cut short, he may be entitled to compensation for the lost years of work.
The state of the labour market will be relevant to the prospects of finding employment. In times of recession, the Supreme Court has emphasised that the court should take account of the economy in assessing the future loss of earnings. The courts may make a deduction from loss of earnings based on the economic climate. This reflects the fact that the claimant may not have been guaranteed employment, even had the injury not occurred.
However, an award of damages should reflect a longer horizon where both boom and bust times might reasonably be anticipated on the basis of past experience. The cyclical nature of the economy and business concerned will be taken into account.
Labour Market
The state of the labour market will be relevant to the prospects of finding employment. In times of recession, the Supreme Court has emphasised that the court should take account of the economy in assessing the future loss of earnings.
The courts may make a deduction from loss of earnings based on the economic climate. This reflects the fact that the claimant may not have been guaranteed employment, even had the injury not occurred.
However, an award of damages should reflect a longer horizon where both boom and bust times might reasonably be anticipated on the basis of past experience. The cyclical nature of the economy and business concerned will be taken into account.
Actuarial Evidence
Generally, actuarial evidence will be offered as to future employment and earnings possibilities and contingencies. They will be based on particular assumptions. In some cases, these assumptions may not be justified and evidence might be offered to challenge the basis of calculation and propose an alternative basis.
Although actuarial evidence is readily received in loss of earnings computations, it is not conclusive. 1980s cases on damages had urged cautioned in respect of the application of actuarial calculations to compensation for future loss of earnings and income. It must be assessed as evidence in the ordinary way given by experts.
The actuary is not the judge on the matter of future loss. However, his guidance will be valuable. Actuarial evidence may provide a guide but must be referenced to the particular facts and the assumptions on which it is based. Of necessity, the actuary’s calculations will be based on assumed facts.
Actuarial Tables
The Minister may, by regulations, prescribe actuarial tables for the purpose of their being referred to by the courts when assessing damages in personal injuries actions in respect of future financial loss.
A court in a personal injuries action shall, in assessing damages in respect of future financial loss, refer to such actuarial tables (if any) as are prescribed.Actuarial tables are those prepared by a person designated for that purpose by a body prescribed by regulations made by the Minister.
Discount Rates
The Minister may, by regulations, prescribe the discount rate that shall apply for the purposes of the assessment of damages in respect of future financial loss. Regulations may prescribe different rates in respect of different classes of financial loss or different periods of time.
The court may apply a discount rate other than the rate prescribed if it considers that the application of the rate prescribed would result in injustice being done.
The “discount rate” means, in relation to the assessment of damages by a court, the rate commonly referred to by that name that is applied by the court for the purpose of determining the current value of any future financial loss.
Tax and Health Benefits
Until the late 1960s, it was not practice in Ireland to make a deduction for the future effect of taxation. The leading British case in the late 1950s decided that allowance should be made for the future taxation by way of reduction. An Irish High Court case in 1973, held that the effect of taxation should be taken into account.
A person may recover in respect of the cost of his medical care. A person entitled to free hospital treatment is not obliged to avail of it, even though this might be argued to be a failure to mitigate.
The Health Amendment Act 1986 required the HSE’s predecessors to charge injured parties for services that they would otherwise receive free of charge if they could recover them in a personal injury case.
Carers
While a close relative takes on the role of carer, it appears that compensation will be awarded for the costs of the relative’s care for the claimant, notwithstanding that he might have provided the care anyway for personal and family reasons. The claimant is generally allowed compensation to enable the carer to be repaid for the care. The courts may value the cost of care on a commercial or discounted basis. They tend to discount the amount payable to relations, relative to third-party commercial providers.
There have been instances in Ireland of carers being compensated directly although the legal basis does not appear clear. In cases of serious personal injury, it may be necessary to adapt the claimant’s accommodation. The claimant may be allowed compensation for the additional cost of accommodation, beyond that which he or she, in the ordinary course would have incurred. but for the accident.
Collateral Benefits
Collateral benefits such as the benefit of insurance policies or other payments which may become available to the defendant reduce the expense and loss incurred by the claimant as a result of the injury. The Civil Liability Act Amendment (1964) provides that in assessing damages in an action to recover damages in respect of 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 or any pension, gratuity or like benefit payable under statute or in consequence of the injury. An equivalent provision applies under the Civil Liability act 1961 in respect of a claim for wrongful death.
Collateral benefits such as the benefit of insurance policies or other payments which may become available to the defendant reduce the expense and loss incurred by the claimant as a result of the injury.
The principle applies in an employer liability claim, where the employer has financed the insurance concerned.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019