Quantifying damages for 'Lucrum Cessans' in tort : Maltese and English jurisprudence compared

Abstract

In cases of tort involving personal injury or unlawful death, the toughest part to be decided is the quantum of damages. The decision of the Courts is far from easy since they have to put the plaintiff in the position he was before the accident took place. When it comes to Damnum Emergens, the decision is quite straight forward since the expenses are evident and can be easily calculated. The same however, cannot be said for the issue of Lucrum Cessans. The Court here has to predict and foresee the future. The scope of this thesis is to delve into the methods used by the Maltese Courts when calculating damages for Lucrum Cessans and to compare them with the methods applied by the English Courts. In the Butler vs Heard, the Maltese Courts built a bridge with the Common Law system, but in reality how strong is this bridge? In what ways is our system similar to the Common Law system and in what ways does it differ? In order to attempt an answer to these questions, in the coming chapters I will delve in a comparative study between the two systems in effort to bring out both the similarities as well as the contrasts between the methods used. Chapter one will give a background of the English structure, the way damages are classified and how are these defined by the several authors. The chapter mainly deals with understanding the categories of compensable damages as defined in the English system. It then moves on to define Lucrum Cessans in Maltese law in order to understand in what ways does this overlap with General damages in English law and in what ways does it differ. Chapter two deals with the methods of calculation of personal injuries adopted by the English Courts in the 1960s, at the time when the Butler vs Heard judgement was delivered and the way these were subsequently changed as time went by. By reference to several case law, this development is outlined and defined. Matters such as lump sum payments, alternative payments and methods of calculations are discussed. Chapter three follows the structure of the previous chapter in that it presents a comprehensive review of the developments in the English system from 1960 to date. However, this chapter deals with case law and calculations made when unlawful death ensues. Therefore this chapter examines also certain issues such as the termination of claims, who has the right to claim for damages and in what circumstances. In Chapter four both damages regarding personal injuries and those for unlawful death are discussed. This chapter focuses on reviewing the historical development of the current Maltese legal and jurisprudential framework which is utilised when assessing compensable damages in tort. It gives particular attention to the point in time when reference to the English system of calculating damages first occurred and it outlines the subsequent evolution of our case decisions. In conclusion, Chapter five aims to explore the manner in which both systems are related and delves into the parallelisms and differences which exist between the Maltese and the English systems. This chapter is an analysis of the current Maltese method for calculating damages whilst recommending possible future amendments to the Maltese Civil Code.