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Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Non Fatal Offences Against the Person Non Fatal Offences - Battery ppt downl

Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Non Fatal Offences Against the Person Non Fatal Offences - Battery 1. Presentation on theme: "Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Non Fatal Offences Against the Person Non Fatal Offences - Battery 1."— Presentation transcript:

1 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Non Fatal Offences Against the Person Non Fatal Offences - Battery 1

2 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Objectives Describe using authority the actus reus of battery Describe using authority the mens rea of battery Apply the actus reus and mens rea of battery to problem questions 2

3 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Battery Battery is an act by which a person intentionally or recklessly inflicts unlawful personal violence on another (Law Commission (1993) Legislating the Criminal Code). Confirmed in R v Ireland (1997) and R v Burstow (1997) 3

4 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Actus Reus The infliction of unlawful personal violence –But also consider: Direct or indirect Non-consensual Physical contact 4

5 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Direct/Indirect Can be –Direct unlawful physical contact (one person touching another as in Collins v. Wilcock) 5

6 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Collins v Wilcock (1984) 6 Case Law Assault - definition of - apprehension of immediate force - mens rea is recklessness or intention - everyday jostling is not assault D refused to speak to a police officer. The officer took hold of D's arm to restrain her. D scratched the officer's arm. Principle – Goff LJ: 'An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. any touching of another person, however slight, may amount to battery.' "Consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact… it is more common nowadays to treat…everyday jostling…as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.” Not Guilty (unlawful contact)

7 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Direct/Indirect Can be –Direct unlawful physical contact (one person touching another as in Collins v. Wilcock) –Indirect unlawful physical contact (where one person touches another and contact is made with a third person as in Haystead [2003]) 7

8 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Haystead v DPP (2000) 8 Case Law Actus reus – battery – indirect force D assaulted a child by punching the child's mother causing the child to fall and hit his head. He argued that battery required the direct application of force which involved direct physical contact with the victim either with the body or with a medium such as a weapon. Principle – Battery did not require the direct infliction of violence and that H's act had been comparable to using a weapon to cause the child to fall. Although D had punched the complainant and not the child that she had been holding, the punches had caused the child to be dropped and therefore the magistrates had been entitled to find D guilty of assaulting the child by beating Guilty

9 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Indirect So batteries can be inflicted indirectly First example of this Martin (1881) Backed up in DPP v K (1990) And confirmed again in Haystead (2000) 9

10 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank R v Martin (1881) 10 Case Law Actus Reus of battery = inflicting unlawful personal violence - intentionally or recklessly – indirect force D positioned an iron bar in a theatre across an exit, as a joke, turned out the lights on a staircase and yelled 'Fire!'. As a result, several people were injured. Principle – Lord Coleridge CJ: 'The prisoner must be taken to have intended the natural consequences of that which he did.’ An assault as such was not essential to the offence; some unlawful act and the foresight of harm would be enough. "Inflict" meant no more than "cause" and did not require a face-to-face assault. Guilty

11 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank DPP v K (1990) 11 Case Law ABH - harm caused indirectly – indirect force D placed acid in a hot air drier to hide it from his teachers. V then used the drier and the acid caused burns on his face. Principle – Parker LJ: D had ‘just as truly assaulted the next user of the machine [V] as if [D] had himself switched the machine on’. If the charge was simply battery, it is not necessary to prove harm. Guilty of ABH

12 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Omissions Generally has to be an act not an omission – this is why the Court ruled that the circumstances in Fagan were a continuing act Battery can be committed by an omission but only if a duty to act can be found See Santana Bermudez (2004) 12

13 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Consensual Battery requires non-consensual touching Consent can be express (victim agrees) or Implied (from the inevitable contact Collins v Wilcock) Consent is a main consideration in the lawful/unlawful distinction 13

14 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Physical Contact Must be some physical contact Merest contact will suffice i.e. touching a persons clothes (Thomas) The touching should be hostile – everyday contact allowable (Wilson & Pringle, Brown and others) Everyday contact must not exceed boundaries of normality 14

15 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank R v Thomas (1985) 15 Case Law Assault – must be indecent - assault is - merest touch D, a school caretaker assaulted a 12-year-old after taking hold of the hem of her skirt. Principle – the act was not inherently indecent and there was no evidence of circumstances making it so. But Ackner LJ said obiter that there can be no dispute that if you touch a person’s clothes while he is wearing them, that is equivalent to touching him. Not Guilty

16 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Collins v Wilcock (again) (1984) 16 Case Law Assault – everyday contact Principle – Lord Goff – Most of the physical contacts of ordinary life re not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street, nor can a person who attends a party complain if his hand is seized in friendship, or even his back is [within reason] slapped.

17 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Wilson v Pringle (1986) 17 Case Law Assault - actus reus of battery D a schoolboy, in fun seized the bag over C's shoulder, causing him injury, and C sued for the tort of assault. Principle – C must establish an intentional and hostile touching of one person by another, though not necessarily an intent to injure. A claimant who cannot prove hostility on the defendant's part is likely to fail, because in a crowded world people must be considered to take upon themselves some risk of injury from the lawful acts of others. C lost

18 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Joint Charging Standards 18 BatteryActual Bodily Harm Scratches/grazesTemporary loss of sensory functions Minor bruisingExtensive or multiple bruising Superficial cutsMinor cuts requiring stitching Black eyesMinor Fractures Agreed by Police and CPS and were produced in order to clarify the offences that would normally be charged following different levels of injury. WARNING – Do not rely on these for your offence recognition – to do so neglects key elements of mens rea

19 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Mens rea Straightforward: Intention to make direct/indirect non consensual physical contact with another Venna [1976] or Subjective recklessness thereto (the defendant must foresee a risk that the victim will apprehend immediate unlawful violence) Cunningham subjective recklessness – what the defendant actually foresaw rather than what he ought to have foreseen 19

20 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank R v Venna (1976) 20 Case Law Assault - mens rea is recklessness or intention D struggled with the police officers who were arresting him. D fell to the ground and lashed out wildly with his legs, fracturing a bone in the hand of an officer. Principle – "The offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another.” Guilty of ABH

21 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Objectives Describe using authority the actus reus of battery Describe using authority the mens rea of battery Apply the actus reus and mens rea of battery to problem questions 21

22 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Plenary Abi has been sponsored for charity to hug as many people as she can in 60 minutes. She sees Andrew in the street and shouts ‘I am going to give you a great big hug!’ Andrew does not want to be hugged by a stranger and replies ‘No thanks, not today.’ Abi ignores this and hugs him anyway. Explain you answer using case law 22

23 Non Fatal - Battery Non Fatal Offences Against the Person © The Law Bank Plenary Rachel has recently split up from her violent boyfriend Sam. She is sitting in a bus in a traffic jam when she receives a text from him saying ‘You are going to die. Terrified she looks out of the window and sees him sitting in a café on the other side of the road. Explain you answer using case law 23

Other articles

Legal Case Study

Legal Case Study

Legal Case Study

Jenny had an argument with her boyfriend, David, which resulted in
David throwing Jenny down some steps. Jenny suffered a very badly
broken leg that needed surgery. She also suffered cuts and bruises to
her other leg.

Question (in 3 parts)

(a) Briefly explain the legal requirement that actus reus and mens rea
should be contemporaneous (occur together). (5 marks)

A brief explanation of actus reus - guilty act, omission, state of
affairs, result crimes
A brief explanation of mens rea - guilty mind, types of mens rea
(intention, recklessness)
The requirement that actus reus & mens rea must coincide
A brief explanation of exceptions to actus reus & mens rea coinciding
- crimes of strict liability

Most crimes (except strict liability) require the prosecution to prove
both the actus reus (the guilty act) and the mens rea (the guilty
mind) of the crime. What they are required to prove will be set out in
the definition of the offence.

There are four types of actus reus.

The most usual is a positive voluntary act on the part of the
defendant.

Secondly in result crimes the criminal act by itself may not be enough
- for example for a murder charge a death must have taken place.

Unusually there may be a state of affairs crime such as occurred in R
v Larsonneur or Winzar v Chief Constable of Kent where the defendant
has little or no control over his actions but is still guilty.

Finally there may be an omission such as in R v Miller when D
recklessly failed to extinguish a cigarette, or where the defendant
has failed to carry out a recognised duty such as in R v Stone and
Dobinson or R v Pittwood.

The mens rea of a crime will be either intention or recklessness.

Intention can be either direct intent which is where the criminal act
is the defendant's aim or purpose, or indirect intent where the

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criminal act is a virtual certain consequence of the Defendant's
action (R v Nedrick).

Recklessness is the taking of an unjustified risk. For the non-fatal
offence crimes the type of recklessness that the courts will require
to be proved is subjective or Cunningham recklessness (after R v
Cunningham) where the court has to be satisfied that the defendant
recognised that there was a risk involved in his action but still went
ahead with it.

The third and less common type of mens rea that is required to be
proved is gross negligence where the jury consider that the
defendant's acts or omissions are so bad that they should be
considered criminal. This type of mens rea is only used for certain
cases of manslaughter.

Crimes of strict liability are where the prosecution do not have to
prove mens rea and are mainly used for regulatory offences such as
traffic offences where the penalty is often a fine.

In order to commit a criminal offence the actus reus and the mens rea
will have to occur at the same time (contemporaneously). Except in
cases of strict liability there can be no crime if the defendant has
committed only the actus reus and forms the mens rea either some time
previously or at some later time. Similarly the courts are reluctant
to convict a person if he has only the mens rea of an offence and does
not commit the actus reus at the same time. However in cases such as
Thabo Meli v R and Fagan v Metropolitan Police Commissioner the courts
are prepared to construe the requirement broadly so that in Fagan's
case his driving onto a policeman's foot and subsequent failure to
remove the car as instructed was considered to be a continuing act.

(b) (i) Outline the range of offences David could be charged with. (5
marks)

Identification of the range of possible non fatal offences
Assault - s39 Criminal Justice Act 1988, summary offence, max. penalty
6 months and/or £5,000
Battery - s39 Criminal Justice Act 1988, summary offence, max. penalty
6 months and/or £5,000
ABH - s47 Offences Against the Person Act 1861, hybrid offence, 5
years max. penalty
Malicious Wounding - s20 OAPA 1861, hybrid offence, 5 years max.
penalty, but more serious injuries than for s 47
Wounding with Intent - s 18 OAPA 1861, indictable offence, max penalty
life.

David could be charged with assault under s39 Criminal Justice Act
1988. The actus reus is that the victim (Jenny) is put in fear of the
application of unlawful force. The mens rea required for this crime is
either intention to put the victim in fear or Cunningham recklessness
as to the putting of the victim in fear. Assault is a summary offence
and is punishable with a maximum 6 months imprisonment and or £5,000
fine.

Battery is again an offence under s39 Criminal Justice Act. It is a
summary offence and is punishable with a maximum 6 months imprisonment
and or £5,000 fine. Battery involves the application of unlawful force
and the mens rea is either intention to apply unlawful force or
Cunningham recklessness as to the application of unlawful force. The
injuries covered by this offence are slight so that the cuts and
bruises caused by the push may be covered by this offence.

Assault occasioning actual bodily harm (ABH) is the next most serious
offence and is set out in s47 Offences Against the Person Act 1861
(OAPA). It can be committed by either an assault or a battery (not
both) which causes actual bodily harm to the victim. This may involve
the victim suffering an injury which may require hospital treatment
such as stitches. The mens rea for this offence is either intention to
put the victim in fear or Cunningham recklessness as to the putting of
the victim in fear leading to ABH or intention to apply unlawful force
or Cunningham recklessness as to the application of unlawful force
which leads to ABH.

The next offence is malicious wounding contrary to s20 OAPA. This can
be committed by the defendant causing either a wound (an external
injury) or grievous bodily harm (GBH) (an internal injury) with the
mens rea of intention to cause some harm or Cunningham recklessness as
to the causing of some harm. The difference between the offences is
due to the injury sustained by the victim. The section 20 offence is
considered to cover the more serious injuries and so Jenny's broken
leg will be covered by this offence as this will be considered too
serious an injury for ABH.

Both this offence and ABH are either way offences and are subject to a
maximum of 5 years imprisonment.

The most serious of the non-fatal offences is wounding with intent
contrary to s18 OAPA. This can be committed by the defendant causing
either a wound or Grievous Bodily Harm (as in s20) but the mens rea is
intent to cause GBH or intent to resist arrest. Recklessness is not a
possible form of mens rea for this offence. It comes with a maximum
sentence of life imprisonment.


(b)(ii) Choose one of those offences. Explain what the prosecution
would have to prove in relation to the actus reus and mens rea of that
offence. (10 marks)

Most likely offences are ABH or s20. Which D is charged with depends
on injuries.
CPS Joint Charging Standards.
For s 20 injuries are either internal (GBH) or external (Wounding).
Prosecution has to choose the correct alternative.
Internal injuries - badly broken leg
External injuries - cuts and bruises (JCC v Eisenhower)
Mens rea is either Intention (direct intent or indirect intent) or
Recklessness.
s20 is hybrid offence, 5 years max. penalty. More serious injuries
than for s 47

Section 20 of the Offences Against the Person Act 1861 provides that
Grievous Bodily Harm is an offence triable either way with a maximum
custodial sentence of 5 years.

The actus reus of the offence is to inflict either a wound on the
victim or Grievous Bodily Harm which according to R v Smith 1961 means
really serious bodily harm. A wound is where the external layers of
the skin are broken (JCC v Eisenhower).

Since R v Ireland and R v Burstow the offence can include really
serious psychiatric harm as long as it is clinically recognised. The
CPS Joint Charging standards will give detailed injuries which amount
to a wound or Grievous Bodily Harm but certainly a broken bone will
come within the definition of Grievous Bodily Harm. The prosecution
will look at the injury first to determine the appropriate offence.

The actus reus may be committed with or without a weapon or instrument
but must cause harm serious in degree and gravity. The prosecution has
to choose whether to charge the defendant with either wounding or
Grievous Bodily Harm, he cannot be charged with both.

The mens rea consists of either intention or Cunningham recklessness.
Intention means that the defendant need not intend Grievous Bodily
Harm or wounding, or be reckless as to its foreseeability, merely to
intend some harm. Intention can be either Direct intent (where the
defendant intends the injury as his aim or purpose of his actions) or
indirect intent (where the injury is a virtually certain consequence
of his actions). Recklessness is where the defendant foresees some
harm but still goes ahead to take a risk.

In this case the injury to Jenny is likely to amount to Grievous
Bodily Harm as it is described as a very badly broken leg which needed
surgery. The cuts to the other leg may be serious enough to amount to
a wound especially if they require medical attention. The prosecution
will have to choose whether they charge the wound or Grievous Bodily
Harm. The bruises by themselves unless they also require medical
attention are unlikely to be sufficient to amount to a s20 charge.

The prosecution will also have to consider whether there is sufficient
evidence of mens rea. Did David intend to push Jenny to cause some
harm or was he reckless at to the causing of some harm?

If the prosecution consider that they have enough evidence to show
that David intended to cause either a wound or Grievous Bodily Harm
(the same injuries as discussed for s20) they may decide to charge him
with the more serious offence of wounding with intent under s 18 which
carries a maximum life sentence.

The broken leg will generally be considered to be too serious for
David to be charged with a s47 offence.


c) Explain what is meant by causation in criminal law. Discuss how the
rules of causation may apply to David's liability for the amputation
of Jenny's leg. (10 marks)

Causation part of mens rea
Factual causation - 'But for' test
Legal causation - had D substantially, more than minimally, caused
injury
Any intervening act?
Cases of R v Smith, R v Blaue, R v Jordan

In any crime it must be proved that there is a causal link between the
defendant's actions and the injury suffered by the victim. Causation
means the proving of both factual causation and legal causation.

For factual causation the 'but for' test is applied. It will be asked
'but for' the defendant's actions the victim would not have suffered
injury. In addition the prosecution must show the illegal action was
more than a minimal cause of the injury, known as the 'de minimus'
rule.

Legal causation is proved in fatal offences by asking whether the
injury was an operative and substantial cause of death or whether
there was an intervening act (a novus actus interveniens) by a third
person that can be said to have caused the death. In R v Smith the
original stab wound was found to be an operating and substantial cause
of the victim's death despite the victim being dropped several times
and receiving poor medical attention. The cases of R v Jordan and R v
Cheshire establish that medical treatment can be an intervening act
and break the chain of causation but only if it is considered that the
cause of the death was the medical treatment rather than the original
injury. In addition the defendant must take his victim as he finds him
so that if the victim is suffering from an unknown weakness the
defendant cannot blame that weakness for his actions (R v Blaue).

In this case, in order to charge David with causing the amputation, it
will have to be considered whether 'but for' his actions Jenny
suffered serious injury and whether the original injury caused by him
(the broken leg) was still operating at the time of the amputation or
whether the medical treatment was so bad that it amounts to an
intervening act.

Jenny was rushed to hospital with a broken leg after being seriously
assaulted. The emergency medical team, being very understaffed, failed
to notice a blocked artery. This resulted in later medical
complications, as a result of which Jenny had to have her leg
amputated.

Jenny is considering suing the hospital for damages in the tort of
negligence.

Question (in 4 parts)

(a) Explaining the relevant rules of law, decide whether the hospital
owed a duty of care to Jenny in this situation. (10 marks)

Duty of care requires
From Donoghue v Stevenson neighbour test
From Caparo v Dickman - foreseeability, proximity, fair, just &
reasonable to owe a duty of care
Examples of those who do not owe a duty (police, fire service)

The tort of negligence was said by Alderson B. in Blyth v Birmingham
Waterworks as 'doing something which the reasonable person would not
do or failing to do something which the reasonable person would do'.
Negligence requires the claimant to prove that the defendant owed a
duty of care, that the duty was broken, and that loss or damage was
caused by the breach of duty.

The case of Donoghue v Stevenson 1932 established that the test for
establishing a duty of care is the neighbour test. Lord Atkin said
'you must not do anything which will injure your neighbour. Who is
your neighbour? Anyone so closely and directly affected by your
actions that you ought to have them in mind as being so affected when
directing your mind to the acts or omissions which are called in to
question.' It can be seen that this is an objective test and the
defendant's actions are judged according to the reasonable person.

The modern law of establishing a duty of care is set out in the case
of Caparo Industries v Dickman 1990 when a three stage test was
established - was the damage or injury to the claimant foreseeable,
was there proximity between the parties and it is fair, just and
reasonable that a duty of care should exist?

In this case as Jenny is a patient of the hospital it can be said to
be foreseeable that an act or omission by the hospital would affect
her, she is proximate to them as she is a patient and as she is in
their care it is fair, just and reasonable that she should be owed a
duty of care.

The courts have established rules of public policy to protect some of
the emergency services from being sued for negligence by saying that
they do not owe a duty of care to those who may be injured by their
acts or omissions. This rule has been applied to the police and fire
service but the courts have not protected hospitals and doctors in the
same way.


(b) Assuming the hospital was found to owe Jenny a duty of care,
discuss whether or not the hospital had broken that duty. (10 marks)

Definition of negligence - doing something the reasonable person would
not do or omitting to do something the reasonable person would do
D's conduct judged objectively
No allowance if D is novice (Nettleship v Weston),
Degree of risk may be relevant (Paris v Stepney Borough Council)
Number of times the event happens (Bolton v Stone)

After establishing the duty of care, the court will assess whether the
standard of behaviour of the hospital fell below that of the
reasonable person (or hospital). If they find that it has then Jenny
will be able to show that they have breached their duty to her. Again
the test for breach of duty is objective. The defendant is not
expected to be a perfectionist. A specialist (a doctor) is expected to
show the same standard as other competent specialists in that field.
In the case of doctors this is said to be the Bolam test.

The court will take various factors into account when deciding whether
there has been a breach of duty. The likelihood of injury is one
factor. The more likely an injury the greater the precautions that
should be taken. Conversely the less chance of an injury the defendant
may take less precautions (Bolton v Stone).

The gravity of injury to the claimant is another factor to be
considered (Paris v Stepney Borough Council).

Any social benefit regarding the breach of duty are considered as in
Watts v Hertfordshire C.C.

If the defendant is young then he will be judged according to the
reasonable person of that age (Mullin v Richards). If the defendant is
inexperienced or a novice he will be treated in the same way as a
person who has had experience (Nettleship v Weston).

In this case it will have to be decided whether the reasonably
competent medical team would have discovered the blocked artery. If
they would have done so then the failure by the team in treating Jenny
will mean that they breached their duty to her. They are unlikely to
be able to blame the severe understaffing as the law will not protect
a service in this way. It is likely to require that the service is
adequately staffed at all times to provide a competent service.

c) Jenny's injuries have clearly caused loss to her. Explain how the
law would decide whether the loss was too remote for Jenny to be
awarded damages. (10 marks)

Injuries have in law not to be too remote from D's act or omission
The Wagon Mound
Requirement of causation - Barnett v Chelsea & Kensington Hospital

The claimant must finally prove that the damage or injury resulted
from the breach of duty. This is called remoteness of damage.

The case of Re Polemis stated that the defendant would be liable for
all the consequences of his action, regardless of foreseeability. This
was overruled by the Privy Council in the case of the Wagon Mound
which provides that the defendant is liable for only the foreseeable
consequences of his acts or omissions. The extent of the damage or
injury is irrelevant as long as the type of damage or injury is
foreseeable. It must be shown that the defendant caused the damage or
injury and just like criminal law the defendant will not be able to
blame the claimant for a weakness of which he did not know. This is
called the 'egg shell skull rule; and was applied in Smith v Leech
Brain when the defendant was held liable for all the injury caused to
the claimant. Just like in criminal law if there is a novus actus
interveniens by a third party this will break the chain of causation
(Barnett v Chelsea & Kensington Hospital).

In this case the court is likely to decide that the type of injury
suffered by Jenny was a reasonably foreseeable consequence of their
operation and the hospital are unable to blame the 'weakness' of Jenny
- the blocked artery - as they must take Jenny as they find her.

(d) Assuming the hospital were to be found negligent in its treatment
of Jenny, explain how the court would decide on the amount of the
award of damages. (15 marks)

Remedies in tort are damages & injunction. In cases of personal injury
usually damages awarded to attempt to put Claimant back in position
they were in before the accident so far as money can do so.

General Damages - calculated according to pain & suffering, loss of
amenity, loss of future earnings, future medical expenses.

Special damages - property damaged in accident, loss of earnings and
medical expenses from accident to date of hearing.

In the law of tort there are two remedies that can be awarded to the
successful party. The remedy for the successful claimant in a personal
injury action is the award of monetary compensation called damages.
The parties can agree on the amount to be paid. If they cannot agree
it will be for the court to decide. The court would decide on the
amount of damages that Jenny would receive by looking at her injuries
and her losses. The principle they would operate under would be to
compensate her for her injuries in an attempt to put her back into the
position as far as possible she would have been in had the accident
not had happened.

Civil law damages can be divided into Special damages and General
damages. Special damages are quantifiable liquidated losses such as
property damage e.g. to a car, or actual loss of earnings. Jenny could
be awarded special damages for anything she lost as a result of the
accident, for example trousers being cut at the hospital or not being
able to work after the accident and up to the date of the court
hearing.

She could also be awarded General damages. These are an
un-quantifiable unliquidated amount and are calculated according to
Heads of Damage. Amounts are awarded for each of the Heads for matters
such as pain and suffering undergone by Jenny as a result of the
accident, loss of amenity, that is not being able to do something
after the accident that she was able to do before, loss of future
earnings and future medical expenses. For loss of future earnings the
court will take an annual amount that they think she would have earned
and multiply it by a number of years to arrive at an approximate
amount for this Head. Similarly for future medical expenses the court
will make a projection as to the type of care and attention that Jenny
would need in the future and calculate an amount accordingly.

The court could order that the damages are paid in one lump sum
immediately after the court hearing, or they could order payment by
way of a structured settlement, that is by regular instalments. Once
the payment has been made it will be for Jenny to spend or invest it
as she sees fit. She will not be able to return to court in the future
to ask for more because she has run out.