! "! Jessica Alizzi MLL213. Torts Law Exam Notes. Topic 1: Damages

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1 Torts Law Exam Notes Topic 1: Damages Unit focuses on Victorian reforms; enacted in the Wrongs Act 1958 (Vic) however will sometimes mention reforms made in other states. Only Victorian law is examinable The major remedy available in torts law is damages Categories of Damages! Compensatory! Aggravated! Exemplary / punitive Compensatory damages Todorovic v Waller (1980) Four main principles to come out of case: 1. Compensatory objective: P to be put in the monetary position as if the injury had not been sustained 2. Once and for all rule: award damages to the P to compensate the P for all past and future losses. what is decided the first time in the court is the final decision can t go back and ask for more money. Compensation in the form of damages is awarded unconditionally, as a lump sum. Not able to bring another action based on the same facts, even if the injury develops into a much more serious condition that is appeared at the time of trial known as the once for all rule (Fetter v Beal (1701). Compensation works to advantage of D " compensation may be less that warranted by the harm suffered. a) Lump sum awards can not be varied. Structured settlement agreements: one way to remedy at least the management of large compensation awards is to invest the lump sum in a guaranteed annuity fund. Fetter v Beal (1701)! Gilchrist v The estate of the Late Sara Alexander Taylor (2004) sustained injury from being hit by a golf ball in 1987, taken to hospital and operated on, as a result she was left with neurological problems, suffered epileptic seizures as a result, and awarded damages of 2.5 million, awarded 20 th dec 2002, in 21 st jan 2003 she died, once and for all rule meant family kept money. b) Court must make predictions about the plaintiff s future health, employment etc! Vicissitudes of life: Wynn v NSW IMC Case is in book! Worked for American express from ! Promoted again in 1986! In that year, she was 30 years old! She was injured in car accident! Aggravated injuries in a previous car accident she had had before the current one! As a result, had to have a bone graft! Went back to work after accident, moving up the corporate ladder! Gets promoted again! She was one person down from the VP! Given a pay rise salary package! because of back injury due to 2 nd car accident had to give up her job! Had to work in family business due to back trouble! Earning capacity decreased significantly! It went to court, trial judge that had she not suffered injury she would have spent around another 23 years working there unlikely she would have retired early (had to be taken into account when deciding on amount of compensation)! The courts took into account because she was at child baring age, there was a strong possibility she would have taken time off due to maternity leave, doesn t need transport cost anymore or money for corporate wardrobe court making decisions based on her future now she is not in the corporate world! Things that you are not going to need the money for anymore! "!

2 Malec v JC Hutton (1990) Deane, Gaudron and McHugh JJ:! Future and hypothetical events to be distinguished from past events (that had happened before trial)! Balance of probabilities analysis not appropriate to future events which involve prediction conjecture and are not susceptible of exact proof! Damages must be discounted for the probability that the future event would occur and the plaintiff would suffer the same loss independently of the tortious accident due to the pre-existing medical condition! Future event only to be ignored where it is speculative (less than 1 %)! Applied to this case:! No certainty that M s back condition would have led to the same psychiatric condition; it could be said only that there was a chance this would occur! Damages for pain and suffering and for gratuitous care to be reduced by the chance that a similar psychiatric condition would have developed from factors unconnected with D s negligence (back injury) (upwards of downwards between 5-20%) But court can now approve an agreement to settle by a structured settlement! S28N Wrongs Act! No tax consequences; not taxed on money that u receive on damages! Advantages: financial management + future reassessment! Limitations: no power to order parties to enter into a structured settlement + only applies to settlements " purely by agreement b/w two parties The court doesn t care how or if the plaintiff spends the money! The permanently unconscious plaintiff " Skelton v Collins (1966)! Damages for gratuitous attendant care services (Griffiths v Kerkemeyer damages)! Once awarded damages up to you how you spend money The plaintiff bears the burden of proof on damages! Onus lies on the plaintiff to prove that there is no other reason he is suffering what he has except for the exact thing that happened! Must prove their loss or injury no defendant Some terminology Special vs general damages! Special damages: can be quantified with a degree of precision (past eco loss)! General damages: can not be qualified with a degree of precision (future eco loss, non-eco loss (not tangible))! EG: I want to claim damages for loss of income " quite easy to do Nominal and contemptuous damages:! Nominal damages: awarded for an infringement of a personal right, but where no damage has occurred " available for torts actionable per se such as trespass to land and battery " often rang of $5k to 15k! Contemptuous damages: same as above, however a derisory amount (eg $1) in recognition that the claim in unmeritorious + P might be liable for costs " doesn t always work in P favour! When you bring a case that has no merit to court can cost P Aggravated damages: are compensatory in nature, and awarded where the D s wrong has been committed in a high handed, malicious, insulting or oppressive way. If the P suffers more than the loss recoverable under compensatory damages, aggravated damages may be awarded Exemplary (punitive) damages: In some cases, punitive damages will be awarded in addition to compensatory damages. Punitive damages do not compensate the victim for injury, rather they exact retribution. Usually awarded in rape, violation, adultery instances importantly any insult to the family. Heads of compensatory damages Economic loss (pecuniary damages)! - Medical, hospital, rehab expenses! Easy to identify that this has costed this much money loss (eg)! Can put a price on " includes damages for gratuitous attendant care services! - loss of earning capacity Non-eco loss (non-pecuniary damages)! #!

3 ! Pain and suffering! Loss of amenities of life! Loss of enjoyment of life; (S28LB)! Plus loss of expectation of life Legislative reform! Significant legislative reform Part VB and Part VBA of the Wrongs Act! " caps and thresholds on damages! important note: reforms n/w where the fault concerned is an intentional act done with intent to cause death or injury or that is sexual assault or other sexual misconduct: ss 28C, 28LC! Note: source of damages award is the common law NOT the Wrongs Act the Act merely modifies common law principles Medical and hospital expenses 2 main categories 1. Actual medical expenses, hospital and rehab expenses; Sharman v Evans (1977) (austlii) Girl involved in car accident being quadriplegic; lost ability to speak and epileptic! Gibbs and Stephens JJ: Reasonable expenses recoverable reasonable in terms of conferring significant physical or psychiatric health benefits to the plaintiff! Medical expenses denied where the cost is great but the benefit to health is slight or speculative or relates only to amenity! Plaintiff wanted to be at home and wanted damages for being at home, court said no as it is cheaper to keep her in hospital! Must be significant health benefit and in this case neither benefited her health! Cf modern community attitudes to the disabled: Altmann v Dunning (1992) Different to attitude of today (this was in 1977) prefer people to live more independently in todays society. Diamond and Simpson (2003) 2. Gratuitous care damages suffered an injury and you now have to be cared for damages to afford care; even if care is a member of family still entitled to damages! Known also as Griffiths v Kerkemeyer damages! G v K (1977) (supplement)! Legal principle and pragmatism favours the award " entitlement arises from P s need for the services - irrelevant whether P will reimburse the carer! No guarantee carer will provide services for rest of P s life! Awarded even if tortfeasor is care provider! Kars v Kars (1996) (in book or look online)! Defendant ended up caring for the plaintiff Provisions in the Wrongs Act apply to damages for attendant care services, defined in s 28B as: a) Services of a domestic nature b) Services relating to nursing c) Services that aim to alleviate the consequences of an injury Gratuitous attendant care services means attendant care services provided by another person for which p has not paid or is not liable to pay. Section 28IA(1): damages for gratuitous attendant care services not to be awarded unless: a) A reasonable need for the services exists b) The need arises solely because of the injury to which the damages relate, and See Woolworths Ltd v Lawlor (BLUE BOOK PAGE 68): difference between pre-accident and post-accident care awarded. c) The services would not have been provided but for the injury. See also 28IA(2) preclusion: [N]o damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided (a) for less than 6 hours per week; and (b) for less than 6 months. Ambiguous provision! $!

4 Better view: Prohibition on recovery only where both conditions satisfied ie, if P requires services for less than 6 hours per week and for less than 6 months Must satisfy both conditions! AND not OR On this view, s 28IA(2) provides for alternative tests ie P can recover by showing either needs the services for > 6 hours per week or for > 6 months. See Harrison v Melhem (2008) (supplement, ch 11) Courts must interpret the words used by Parliament, not seek to divine the subjective intention of Parliament Provision precludes p from an award, it does not provide for conditions for p to qualify for an award And is a conjunctive terms; nothing in provision which displaces this ordinary and natural meaning the word Underlying policy of the unfairness to p and p s family and friends if the voluntary support should go unrewarded when provided over above what could reasonably be expected on the basis of ordinary human bonds and affection Here, policy choice that unfairness threshold reached where either condition is met Victorian Court of Appeal reached same conclusion in Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority [2007] VSCA 210 Conflicting authority in QLD: Kriz v King [2006] QCA 351 NSW legislation subsequently amended to resolve ambiguity; s 28IA(2) has not been Cf s 28ID No requirement in s 28IA(2) of 6 consecutive months Contrast s 28ID (below) Quantum of GCD: Van Gervan v Fenton (1992): Reasonable value of services (ordinarily market value), not income foregone See now cap in 28IB Wrongs Act: Links the amount recoverable to average weekly Vic earnings Where services for >40 hours pw, GCD can not exceed the average weekly earnings of Vic full time workers (approx $1023 pw) Where services for < 40 hours pw, GCD are pro-rated (one-fortieth of $1,023 = $26.57 ph) Loss of ability to care for others At common law not available as a separate head of damages: CSR Ltd v Eddy [2005] Vic Wrongs Act: permits damages for loss of ability to provide services to family members, but imposes limitations: S 28ID: No damages unless the court is satisfied that the care: a) Was provided to the claimant s dependants, and Defined in s 28B as any persons who are wholly, mainly or in part dependent on the claimant at the time of the injury Not limited to persons whom P had a legal obligation to maintain Extends to grandparents looking after grandchildren doesn t just include immediate family» [Amaca Pty Ltd v Novek 2009] NSWCA 50 b) Was being provided for at least 6 hours p/w and c) Had been provided for at least 6 consecutive months before the injury (or there was a reasonable expectation that they would have been) Seems clear from the wording of the provision that these are cumulative provisions (cf s 28IA(2)) S 28IE: same caps as for GCD Loss of earning capacity 1 P s pre-accident or without injury earnings x weeks left in P s pre-accident working life Give you money from the date of the accident to the date of the trail will give you money for finance lost during that period However difficult to do this for the future as many things could happen Shortened life expectancy Sharman v Evans Damages calculated over pre-accident life expectancy BUT deduction for saved expenses during lost years ; also medical expenses awarded only for expected life But see now cap on amount that can be awarded as loss of earning capacity: S 28F(2) of the Wrongs Act : In the case of any award to which this section applies, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the death or injury) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award. S 28F considered in Tuohey v Freemasons Hospital [2012] VSCA 80! %!

5 ! T was an engineer! Before accident P earned $10,548.52! After accident P earned $6,442! T wanted 3 times the amount of average weekly earnings PLUS his pay prior accident! Court said no S 28F cap to be applied to the first component of the damages assessment P is to be awarded difference between capped amount (approx 3,069) and with injury earnings P gets nothing if with injury earnings exceeds capped amount 2 Tax must be deducted: s 28A 3 Deduction of saved items of expenditure Items that were directly related to the job, eg uniforms, tools, trade magazines, equipment Child care savings not deducted Wynn v NSW IMC (1995) (online reading) 4 Adjustment for the vicissitudes of life Usual discount range: 5-20% Wynn v NSW IMC NB: no deduction for insurance or superannuation payouts, or for government benefits or medicare payments Discount to present value! Future economic losses (medical expenses, loss of earning capacity) discounted to recognise P can invest lump sum: 5% (s281 Wrongs Act); 3% for claims where Wrongs Act N/A! Examples of insignificant injuries! Loss of taste 3%! Loss of smell 3%! Loss of little finger or big toe 5%! Examples of significant injuries! Sprained wrist, minor loss of motion 6%! Soft tissue back injury 12%! Moderate dislocation of shoulder 15%! Loss of sight in one eye 28%! Loss of one arm 60%! Quadriplegic who needs a ventilator 100% Degree of impairment assessed objectively a medical determination of loss of physical and/or psychiatric function When determining extent of physical impairment, psychiatric consequences not to be taken into account: s28lj Non-eco loss Loss of amenities/enjoyment of life! Compensation for disability/impairment of P s ability to enjoy life! ive now lost a leg and I used to be a keen cyclist/runner can no longer participate in hobbies and recreational sport that I used to do! also loss of enjoyment of life with regards to marriage, child bearing etc! largely subjective: modest sum if P is permanently unconscious (eg $10,000-$20,000) Skelton v Collins **Answer is often in the question they will lead you to a certain type of answer Another non-eco loss: Pain and suffering! Compensation for physical pain and psychological consequences (worry, frustration, anxiety etc)! Completely subjective! Skelton v Collins! When you are permanently unconscious no awards for pain and suffering as you cannot feel any pain or suffering Loss of expectation of life! Consolation or solace for P for shortened life! &!