LAW OF TORTS. Classification Torts can be broadly defined into intentional (first 4 topics) and unintentional (most important being negligence).

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1 LAW OF TORTS TOPIC 1: Damages Definition: A tort is a wrongful act done intentionally, negligently, or in circumstances of strict liability, but not involving breach of contract, for which a civil suit can be brought. Classification Torts can be broadly defined into intentional (first 4 topics) and unintentional (most important being negligence). Recent Tort Reforms: During 2002 and 2003 legislation was enacted to reform aspects of the law of negligence and damages assessment. Damages awards in Torts Law The major remedy available in torts law is damages and it is on this remedy that we will focus. Other remedies, such as injunctions and restitution, are considered in other subjects. There are three broad categories of damage: 1. Compensatory damages 2. Aggravated damages, and 3. Exemplary damages. Compensatory damages Four general principles of damages assessment There are four main principles of damages assessment as stated in Todorovic v Waller (1980) 150 CLR The aim of an award of damages (for personal injury) is to seek, so far as money can do it, to restore the plaintiff to the position he was before the tort was committed. 2. The court will award damages in a once and forever lump sum: Todorovic v Waller (1980) High Court. The court will measure damages taking into account all past and future losses; furthermore if future losses turn out to be greater or less than court has measured, neither party has the ability to return to court to seek a variation in the damages: Fetter v Beal a. The court is not able to make payment of damages periodical. However, now s 28N Wrongs Act allows for a court to approve an agreement made by the parties to settle a claim through periodic payments; however the court has no power to order such a settlement in the absence of such an agreement. Moreover, if the matter proceeds to trial, the court would have to make damages available in one lump

2 sum. The Income Tax Assessment Act 1997 has been amended to ensure that the periodic payments will not be taxable for personal injury claims only. b. The court will make adjustments to the amount of damages paid by taking into account the personal circumstances of the plaintiff. The court adopts an approach whereby they assess the future probability of an event occurring, and reduce/(increase?) damages by that amount. i. For example in Malec v JC Hutton Pty Ltd (1990): The plaintiff s claim for damages for gratuitous care for his wife (who had to care for him because of his neurotic illness) would be reduced by approximately 56% to reflect the probability that his back condition would cause the onset of the same neurotic condition experienced as a result of the contracting brucellosis due to his employer s negligent actions. ii. A balance of probabilities test is used to determine whether past events actually occurred. c. The court is not concerned with how the plaintiff spends (if at all) their money. i. The courts will also award damages even if medical expenses had been reduced because the plaintiff was cared for gratuitously by a family member: Griffiths v Kerkemeyer (1977) d. The onus lies on the plaintiff to prove the loss or injury. Classification of Damages: - 3 main categories: Compensatory, Aggravated and Exemplary 1. Compensatory damages: - Where a court awards compensatory damages, it will do so under the following titles: a. Pecuniary Damages (Losses which represent a financial loss) i. Medical and hospital Expenses ii. Loss of earning capacity b. Non- Pecuniary Damages i. Pain and suffering ii. Loss of Amenities/Enjoyment of life iii. Loss of expectation of life PECUNIARY DAMAGES: Medical & Hospital Expenses

3 The plaintiff is to be compensated for all expenses reasonably incurred, or which will be reasonable incurred, in treating/coping with the injuries. i. Home care: Sharmon v Evans (1977) took the view that an order for the cost of home care was only to be made where the expense is reasonable in terms of conferring significant health benefits (physical of psychiatric) on the plaintiff ie. not just that it will make them happier. *However, community attitudes toward home care have changed since the decision in Sharman v Evans, and the courts are now much more likely to award damages for home care to enable disabled persons to live independently: see, eg, Burford v Allan (1993) 60 SASR 428; Altmann v Dunning [1995] 2 VR 1 ii. Gratuitous Home Care: - Griffiths v Kerkemeyer (1977) suggests that where it is reasonable to award the cost for home care, the court shall ignore the fact that the home care will be provided gratuitously. - In Van Gervan v Fenton the High Court emphasised that gratuitous care damages are to be awarded on the basis of the market value of the home nursing care, and not by reference to the income that was lost by the carer. (This was also the view taken in Griffiths v Kerkemyer. However section 28IB of the Wrongs Act (see below) now caps the amount of gratuitous care damages that can be awarded, so that full market cost might no be longer recoverable. NB: s 28IA(1) Wrongs Act states 3 preconditions that must be satisfied before an award of gratuitous care can be made: i. there is/was a need for the services provided ii. the need has arisen/arose solely as a result of the injury to which the damages relate iii. the services would not have been provided had it not been for the injury to which the damages relate s 28IA(2): provides that no damages are to be awarded if the services provided are for (i) less than 6 hours a week, and (ii) less than 6 months s 281B: caps the amount of damages that can be awarded for gratuitous care. If services are provided 40 hours or more; the amount of awarded per week is not to exceed the average weekly earnings of state workers at the time. If services are provided less than 40 hours; the amount of awarded is not to exceed an hourly rate of 1/40 th of the average weekly earning. Loss of ability to care for others: - s 281D Wrongs Act now provides that in Victoria a claimant can be awarded a sum of damages for gratuitous care that the claimant would have provided to a dependant, but is unable to do so as a result of the injury. However, the court must be satisfied that the care was provided at least 6 hours a week, and had been provided at least 6 consecutive months prior to the injury taking place. o If damages are to be awarded as such, there shall be a cap placed on the amount, using the same method as in s 281B

4 Loss of Earning Capacity: The court will compensate the plaintiff for past loss of income, that is, the income lost between the date of the accident and the date of the trial, as well as an award of damages for loss of capacity to earn income in the future. To work out future loss of earning capacity the court will take into account the following: 1. Where the plaintiff had a pre-existing career before the accidents; a. The plaintiff s weekly after-tax income (s 28A Wrongs Act) will be multiplied by the amount of weeks left in the plaintiff s notional preaccident working life. b. This amount is then reduced by any expenses that would have been saved as a result of no longer working eg. tools, uniforms, transport - though such expenses must have directly been related to the performance of work, not simply expenses which were incurred to allow the claimant to work: eg. child care, housekeeping c. The amount is also reduced to take into account the the vicissitudes of life that is, those occurrences that would have prevented the plaintiff from working, even if they injury had not occurred sickness, unemployment i. Wynn v NSW Insurance Ministerial Corp (High Court) suggested that the court should discount the original award of damages by 15% in order to take into account these vicissitudes; however, this figure should be adjusted upwards/downwards dependant on the personal circumstances of the claimant. ii. Under common law the amount of damages is further discounted by 3% to take into account that the claimant will receive the damages in a lump sum at the present time meaning they will have the opportunity to invest the money, and earn interest. However; for negligently caused personal injuries s 28I Wrongs Act discounts the amount of damages by 5%. 2. Where the plaintiff s life expectancy is shortened due to injury: a. The plaintiff shall receive an amount which includes the loss of earning capacity during the lost years: Skelton v Evans (1966). However, the court shall deduct an amount for expenses which would naturally not have been incurred by the plaintiff during those years (eg. food, clothing): Sharman v Evans. 3. Where the plaintiff did not have a pre-existing career: a. The court obviously can not use prior earnings as a guide to future earnings in cases where the claimant was not employed at the time of accident (eg. unemployed, student, homemaker); In such cases, based on the evidence provided the court will have to make predictions as to whether the claimant would have engaged in paid employment, the nature of the employment and likely remuneration. i. The courts tend to be conservative in such circumstances.

5 Wynn v NSW Insurance Ministerial Corporation: - In this case, the reduction for the normal vicissitudes of life of 15% was originally reduced to only 5% as the court took into account the plaintiff s age (only 30), good health, and chance for promotion at a secure job. - The plaintiff s chance of pregnancy was taken into account, but the court recognised the ability to take one year s maternity leave. - However, the court was forced to take into account a pre-existing degenerative spinal condition that might have adversely affected her ability to work; as such, the court adjusted the discount amount to 12.5%. s 28F Wrongs Act: Cap on amount of damages for loss of earning capacity: - This section caps the amount of damages that may be awarded if the claimant s income exceeds 3 times the amount of average weekly earnings. - At present the average weekly income is around $1000; which would prevent more than $3000 (or $156,000 per year) being awarded. Non- pecuniary damages: Damages for non-pecuniary loss (defined by s 3 Wrongs Act as pain & suffering, loss of amenities, disfigurement, and loss of enjoyment of life) are assessed almost entirely subjectively. 1. Loss of amenities of life/loss of enjoyment of life This is head of damage is designed to compensate the plaintiff for the mental distress, and feelings of frustration as a result of being unable to participate in activities. As such, if the plaintiff is unaware of their restrictions in life (eg. permanently unconscious) the award of non-pecuniary damages will only be modest: Skelton v Collins (1966). Moreover, the more active the plaintiff was before the accident, the greater the damages that will be awarded under this head 2. Pain and suffering This head is designed to provide relief (so far as money can do) for the physical hurt that has been occasioned by the accident and its aftermath: Tuebner v Humble 1. Although damages for this head should be determined subjectively, it has been found that a court may look at comparable cases, in order to determine a range withing the particular award might fall: Cull v Judd 2. Moreover, under s 28HA Wrongs Act states that in determining damages for non-economic loss, a court may refer to the earlier decisions of another court for the purpose of establishing an appropriate award. However, the court shall not be bound by any award under this head, and shall use other decisions only as a guide. 3. Loss of expectation of life 1 Tuebner v Humble (1963) 108 CLR 491 at Cull v Judd [1980] WAR 161 at 166 (FC), where a comparison was made with the amount awarded under this head in Sharman v Evans (1977) 138 CLR 563

6 This head of non-pecuniary damages is awarded when the plaintiff s life expectancy has been shortened as a result of the accident. The High Court in Skelton v Collins 3 took the view of the House of Lords (Benham v Gambling 4 ), that as it is very difficult to put a monetary value on such a loss, that the courts should award a modest/conservative sum. Caps for Non-pecuniary Losses: The Wrongs Act caps damages for non-pecuniary loss, set at $371,380 (subject to inflation): s 28G Wrongs Act. The Wrongs Act also imposes thresholds for the recovery of non-pecuniary damages, the object of which is to discourage claims for minor injuries. Part VBA of the Act provides that non-pecuniary damages 5 will generally only be recoverable where a plaintiff has sustained a "significant injury". "Significant injury" is defined in s28lf Wrongs Act as being: - a physical impairment of greater than 5 percent, - a psychiatric impairment of greater than 10 percent, - the loss of a foetus, - psychiatric injury arising from the loss of a child, or - the loss of a breast. The assessment of injury must be made by an approved medical practitioner: s 28LG, however the defendant if unhappy with that assessment may within 60 days refer it to a Medical Panel (whose decision will be binding on the court s 28 LZH) Some examples of impairments that would not reach the threshold under the new regime (and therefore non-pecuniary damages would not be available) are: Small scar on hand: 3% Bruising to shoulder with minor loss of motion: 4% Fracture of kneecap with complete recovery: 3% Loss of taste: 3% Loss of big toe: 5% Loss of little finger: 5% Loss of sense of smell: 3% Examples of impairments that would meet the threshold are: Sprained wrist with minor loss of motion: 6% Sprained ankle with moderate loss of motion: 6% Mild partial loss of sensation in mid-forearm 6% Soft tissue back injury : 12% Use of ankle brace: 15% Moderate dislocation of shoulder: 15% 3 Skelton v Collins (1966) 115 CLR 94 4 Benham v Gambling [1941] AC The thresholds do not apply to claims for other types of damages, such as medical and hospital expenses or loss of earning capacity.

7 Loss of sight in one eye 28% Loss of one arm 60% Quadriplegic who needs a ventilator to breathe 100% More than one Injury: - If a person has suffered more than one impairment resulting from injuries arising out of the same incident, all of the impairments must be included in the same assessment: s 28LL Wrongs Act. - However, any psychiatric injury arising as a consequence of the physical injury is to be ignored: s 28 LJ Wrongs Act Aggravated Damages: (For acts which are done maliciously) Aggravated damages are awarded where the defendant s wrong was committed in a particularly malicious, insulting or humiliating way. Aggravated damages are designed to award the plaintiff for injury to the plaintiff s feelings caused by insult, humiliation, embarrassment, loss of pride etc. - Aggravated damages will be further dealt with in Topic 2 Exemplary Damages (Awarded to Punish/Deter Offenders) Exemplary damages are not compensatory but are designed to punish the tortfeasor and to deter the tortfeasor and others from engaging in like conduct: Lamb v Cotogno 6. The High Court in Gray v Motor Accident Commission 7 confirmed that Exemplary damages were only to be awarded in exceptional circumstances where there is a conscious wrongdoing in contumelious disregard of the plaintiff s rights. - In Gray s Case the plaintiff intentionally drove his care at the plaintiff causing serious injury. However, the High Court rejected the claim for Exemplary damages as the defendant had already imprisoned after being convicted at criminal trial, ie. the court felt that the tortfeasor had already been sufficiently punished. Wrongful Death: Where the victim of the tort has died, there are two possible causes of action that can be taken by the estate or dependents (either in the alternative or in combination): 1. Survival of causes of actions: The estate can bring a claim under survival of actions provisions to recover pecuniary losses incurred by the victim between the date of the accident and the date of the death, and/or 6 Lamb v Cotogno (1987) 164 CLR 1. 7 Gray v Motor Accident Commission (1998) 73 ALJR 45.

8 s 29 Administrative and Probate Act 1958 provides that tortious causes of action (with the exception of defamation) survive the death of either party. - Where the plaintiff died as a result of the tort, non-pecuniary losses are not recoverable on this cause of action. - Damages may be sought for loss of income/earning capacity between the accident and the death, hospital and medical expenses incurred between the accident and the death, and funeral costs. 2. Claims by Dependant s of the deceased If the victim had dependents, the dependents can sue under wrongful death legislation for loss of financial support and loss of domestic services in the period after the death. o s 17 Wrongs Act provides a definition of the term dependants: such persons as were wholly, mainly or in part dependant on the person deceased at the time of his death or who would but for the incapacity due to the injury which led to the death have been so dependant. o s 16 Wrongs Act provides that for a dependant to claim damages for wrongful death, they must be able to show the following: 1. The deceased s death was caused by the tortious conduct a. The claimants need show only a causal link between the wrongdoer s act and the death, and not that the death was a reasonably foreseeable consequence of the accident: Haber v Walker. 8 Haber v Walker: Haber had a motor vehicle accident in which the defendant was negligent. The victim then some 18months later committed suicide as a result of depression caused by the accident; as such the jury found that the death if the deceased was caused by the accident, however the defendant could not reasonably foresee such occurrences. Even though this was the case, the trial judge gave judgement for the plaintiff. 2. Had he or she lived, the deceased would have been entitled to maintain an action (ie a tort such as battery and/or negligence must be established) and 3. The deceased could have recovered damages on such an action (ie the action would not have been time barred or prevented by a defence such as voluntary assumption of risk (see this defence in topic 12. Assessment of Damages on a Wrongful Death Claim: Where the deceased was in employment prior to death, the loss suffered by the family members will be calculated by reference to the lost earning capacity of the deceased, though a deduction will be made to take into account the amounts the deceased would have spent on personal items. - Homemakers: Where the deceased was not employed, but was a homemaker, the loss to the surviving family members is the value of the services of which they have been deprived by the death. The courts in Nguyen v Nguyen 9 have found that a parent s or spouse s domestic services do have a pecuniary value. 8 Haber v Walker [1963] VR 339; see also Zavitsanos v Chippendale [1970] 2 NSWR 495 at 500, which states that if the suicide results from an extraneous reason, it may be regarded as a novus actus intervenious (intervening event); This case supported Haber. However, rejected in Lisle v Brice (see law of torts book $pg. 403) 9 Nguyen v Nguyen (1989) 169 CLR 245.

9 - Wrongs (Remarriage Discount) Act 2003 (Vic) prevents a court from applying a separate discount to reduce damages to a former spouse/partner on a wrongful death action on the basis that they were likely to/or have remarried and will receive financial support from their new spouse. 10 Contributory Negligence: - s 26(4) Wrongs Act 1. Claim under Survival of Actions: CN will reduce the amount of damages that the deceased s estate can claim. 2. Claim by Dependant: CN on part of deceased is to be ignored; however any contributory negligence on the part of the dependant seeking the claim will result in a proportionate reduction in the damages payable to that dependant. Limitation of Actions: (Time periods) The Limitation of Actions Act 1958 (Vic) was amended in 2003, and now prescribes a limitation period for claims relating to personal injury or death of 3 years from the date the cause of action was discoverable by the plaintiff, or within 12 years from the date of the act/omission alleged to have resulted in the personal injury with which the action is concerned: (Whichever is first to expire) s 27D Limitation of Actions Act. Minors/disabled: In the case of personal injury claims by minors or a person with a disability, the limitation period is 6 years from the date on which the cause of action is discoverable by the plaintiff, or in any event within 12 years from the date of the relevant act/omission: (whichever first to expire) s 27E Discoverable: Given meaning under s 27F: 10 This act is a legislative enactment of De Sales v Ingrilli [2002] HCA 52

10 1. A cause of action is discoverable by a person on the first date that the person knows or ought to have known of the following facts: a. The fact that the death or personal injury has occurred b. The fact that the death or personal injury was caused by the defendant c. (In the case of personal injury), the fact that the injury was sufficiently serious to justify bringing of an action on the cause of action. 2. A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact: court shall taken into account conduct and statements to decide if a person ought to have known. Extension of limitation period may be given if it is just and reasonable to do so: s 27K 11 TOPIC 2: TRESPASS TO THE PERSON & OTHER INTENTIONAL TORTS Trespass to the person is a generic term, encompassing 3 separate torts; batter, assault and false imprisonment. Fault: The onus is on the defendant to establish an absence of fault; that is, the defendant must establish that the act was neither intentional or negligent: McHale v Watson. 12 However, the onus shall remain with the plaintiff in motor accident cases. - In practice, trespass to the person has been limited to intentional acts, however, it has never been actually so limited by the High Court as such it must be treated as encompassing both intentional and negligent acts. 11 See also s 27I and s 27J (deals with minors and parents) 12 McHale v Watson (1964) 111 CLR 384

11 Actionable per se: The torts of battery are actionable per se, meaning that even though the plaintiff has not suffered any damage from the commission of the tort, they still may have a cause of action. TORT OF BATTERY: In order to establish a prima facie case of battery the plaintiff must establish a positive, voluntary act which directly brought about contact with the person of the plaintiff and which exceeded the type of contact that is generally acceptable in the ordinary conduct of daily life. - Any contact no matter how harmless or casual will amount of battery, provided that it falls outside that which persons in society impliedly consent to: Collins v Wilcock 13 Elements of Battery: 1. A positive and voluntary act: a. There must be a positive act of contact; ie. no liability will be imposed for a failure to act. However, if the defendant did not positively bring about the initial contact, but the defendant intends that contact to continue, the defendant might have imputed to him a positive act: Fagan v Metropolitan Police Commissioner. 14 b. The act of contact must be voluntary; an act may be involuntary where the defendant was in a state of automatism, was acting under compulsive necessity (Scott v Shephard), was propelled by another, or was engaging in a purely reflexive action. If the defendant was intoxicated or suffering from a mental illness it will only negate voluntariness if the defendant had no conscious knowledge of his actions: Morris v Marsden 15 - if the defendant knows that he is committing the action, he will be liable for battery: he does not need to understand that his actions were wrong. 2. Act must directly result in contact with the plaintiff a. If there is an obvious and visible intervening cause then the contact will not be considered sufficiently direct: Hutchins v Maugham 16 i. In determining whether an act directly resulted in contact, factors such as geographic closeness, lapse of time will be taken into account. ii. There are times when direct contact need not be shown eg. removing a chair from underneath a person. Garrat v Dailey (1955) 17 iii. Where the contact is with an item of the plaintiff s clothing rather than directly with the body, battery will be committed, at least where the contact involves some element of force Collins v Wilcock [1984] 1 WLR Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 Accidentally drove on police officer s foot, upon knowing that his car was on the officer s foot, he still did not move the car. 15 Morris v Marsden (1952) 1 All ER Hutchins v Maugham [1947] BLR Garrat v Dailey (1955) 279 P 2d 1091

12 iv. In America the forcible seizing of a package from under the plaintiff s arm has been held to be a battery Contact must have been intentional or negligent a. Accordingly, the defendant will be liable where he intended the contact with the plaintiff, or where the act of contact was negligent (i.e. where the plaintiff should have foreseen that contact would occur, and as a reasonable person should have refrained from the act). However, generally where the act is negligent, the focus of the litigation will be on the tort of negligence. b. The motives for the contact are irrelevant: even if the defendant was attempting to help the plaintiff eg. a doctor who is administering life saving medical treatment, if that doctor has not obtained consent, the defendant will be liable in battery: Re F (Mental Patient: Sterilisation) Contact must exceed that which is generally accepted in society a. Collins v Wilcox 21 states the test: contact must go beyond generally acceptable standards of conduct in everyday life. Damages: - Where battery has occurred but no injury sustained the plaintiff would only be entitled to nominal damages (not designed to be compensatory, but rather to recognise a wrong has been done to the plaintiff). - Where injury has been sustained, the plaintiff would be entitled to compensatory damages (see Topic 1). TORT OF ASSAULT: Definition: Assault is any intentional, direct threat by the defendant that places the plaintiff in a reasonable apprehension of an imminent harmful or offensive contact with his or her person either by the defendant or some person or thing within the defendant s control. Elements of Assault: 1. An intentional threat - Threat must be a direct, physical threat. However, words are not necessary if the act clearly places the plaintiff in a reasonable apprehension of imminent, harmful physical contact. - Chief Constable of Thomas Valley Police v Hepburn: 22 Whilst it is not an assault to simply get in someone s way, it is a technical assault to obstruct 18 R v Day (1845) 4 LT OS 493: In that case it was held that battery could be committed by slitting with a knife the clothes which a man was wearing. 19 Morgan v Loyacomo (1941) 1 So 2d 510: Griffith J in that case said that to constitute an assault and battery, it is not necessary to to touch the plaintiff s body/clothing; knocking or snatching anything from the plaintiff s hand when done in a rude or insolent manner, is sufficient. 20 Re F (Mental Patient: Sterlisation) [1990] 2 AC 1 21 Collins v Wilcox [1984] 1 WLR 1172 at Chief Constable of Thomas Valley Police v Hepburn [2002] EWCA Civ 1841 at 17

13 them in circumstances which make it clear that if they go on they will be stopped forcibly. In that case, a policeman held out his baton to bar the victim s way (not necessarily making contact). - Conditional Threat: will constitute an assault where the def makes it clear that no bodily contact will ensue if the plaintiff obeys the unlawful instructions. 2. Apprehension of imminent harmful or offensive contact - According to Zanker v Vartzohas 23 the imminency of the harm is to be determined by asking whether the apprehension was present and continuing : that is, in the plaintiff s mind and continuing from the point of the threat to the point when the threat was meant to be carried out. - In Zanker a woman was imprisoned in a moving car, and threatened with physical harm once the car would reach an unknown destination. In that case, it was held that the woman carried an apprehension of imminent violence despite her not knowing how far away the destination was. 3. That apprehension being reasonable - The apprehension of impending harm is to be judged objectively, that is whether a reasonable person in the plaintiff s position would anticipate imminent contact (does not have to fear imminent contact), thus it is not dependant on the courage of the victim. - Abusive phone calls: In Australia the view is that generally abusive phone calls will not amount to assault, (as threat must be direct and imminent: Tuberville v Savage) unless in exceptional circumstances where the plaintiff believes he is under surveillance (and the threat is thus very immediate). Damages for Assault: - The plaintiff will be entitled to damages for fright, shock, distress as well as any actual injury which was caused by the assault. 23 Zanker v Vartzokas (1988) 34 A Crim R 11