Torts Exam Notes. Topics: 1. Damages o Compensatory! Economic (pecuniary)! Non-economic (non-pecuniary) o Aggravated o Exemplary/punitive

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1 Torts Exam Notes Topics: 1. Damages o Compensatory! Economic (pecuniary)! Non-economic (non-pecuniary) o Aggravated o Exemplary/punitive 5. Duty of Care o Reasonably foreseeable? o Established relationship o Salient features 6. Breach of Duty o Section 48(1) Wrongs Act! Was the risk foreseeable?! Was the risk not insignificant?! Would a reasonable person have taken precautions? o Calculus of negligence (section 48(2) Wrongs Act)! Probability of the harm occurring! Likely seriousness of the harm! Burden of taking precautions! Social utility o Section 49 Wrongs Act 7. Causation o Section 51 Wrongs Act! Factual causation: but for! Legal causation: scope of liability 8. Remoteness o Was the injury reasonably foreseeable? o Or too far-fetched and fanciful? 9. Omissions o Public authorities Psychiatric harm 1

2 o Pure or consequential 10. Defences o Contributory negligence (section 62 Wrongs Act) o Voluntary assumption of risk (section 54 Wrongs Act) o Obvious risk Topic 6 (section 53 Wrongs Act) o Limitation periods 11. Private nuisance 12. Breach of Statutory duty 2

3 Negligence Duty of care: look at relationship established categories? If not, look for salient features o Reasonably foreseeability: was some kind of harm or injury likely to occur? general and usually satisfied Breach of duty: has to be a relationship to begin with o Section 48(1) of the Wrongs Act! Three questions to ask:! Was the risk foreseeable?! Was the risk not insignificant?! Would a reasonable person have taken precautions? o Section 48(2) of the Wrongs Act: Calculus of negligence! In determining whether a reasonable person would have taken additional precautions, court is to consider, amongst other things:! Probability that the harm would occur if care was not taken! Likely seriousness of the harm! Burden of taking precautions to avoid the risk harm! The social utility of the activity that creates the risk of harm # Bolten v Stone (cricket case): only way to protect any risk from happening would be to stop cricket altogether, closing the cricket ground for not significant risk of harm would be a loss of social utility o Section 49 of the Wrongs Act! Take into account (a) (b) and (c)! Other principles Causation o Consider if the specific breach caused the harm that was suffered look for a link o Section 51 of the Wrongs Act! Two fold test:! Factual causation apply the but for test! Legal causation (scope of liability) is it appropriate that the defendant s liability is extended to the harm suffered by the plaintiff 3

4 # Where another tortious act (new and intervening) occurs that breaks the chain of causation Remoteness not governed by statute o Look at case law o Is this the type of injury that is reasonably foreseeable from the situation? o Is it too far-fetched and fanciful? Reasonable foreseeability main point of negligence Psychiatric Harm negligence not only covers physical harm Section 75 of the Wrongs Act o Has to be a recognised psychiatric injury o Not a transient emotion Section 28 LE, 28LF of the Wrongs Act o Non-economic loss recoverable where the plaintiff has suffered a permanent impairment exceeding 10% (greater than 10%, 11% or more) Section 72 of the Wrongs Act o No duty owed to plaintiff to take care not to cause the plaintiff pure mental harm Section 73 of the Wrongs Act o This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in danger by the act or omission of the defendant. o The plaintiff is not entitled to recover damages for pure mental harm unless! (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger; or! (b) the plaintiff is or was in a close relationship with the victim. o No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or 4

5 omission would be prevented by any provision of this Act or any other written or unwritten law. DEFENCES Contributory Negligence o Section 62 of the Wrongs Act o Damages can be reduced to 100% but very rare o Was P negligent? Ie did P fail to take reasonable care for own safety?, and o If so, was P s negligence a cause of the damage?, and o If yes, what reduction in P s damages would be just and equitable having regard to P s share in the responsibility for that damage. o Montfroy v Roads Corporation [2005] VSC 320 o Basis of negligence = reasonableness Voluntary Assumption of Risk o Must know of all of the risk o Know all the dangers involved o Having an idea is not enough, must know completely o appreciates the exact nature and extent of the danger, and o freely and willing agrees to assumes the risk of injury from the dangerous activity. o Section 54 of the Wrongs Act works along side obvious risk o Randwick City Council v Muzic [2006] NSWCA 66 o Paltidis v The State Council of the YMCA of Victoria [2006] VSCA 122 Obvious Risk o Section 53 of the Wrongs Act o A risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Omissions failure to act Control by the defendant over the source of the risk; Assumption of responsibility by the defendant for the prevention of the risk; Knowledge by the defendant of a specific risk of harm to the plaintiff; 5

6 Vulnerability of the plaintiff and dependence on the defendant to take steps to protect the plaintiff from that known risk of harm. Courts are loathe to impose liability where the harm in question resulted from a decision or act by a fully autonomous plaintiff, and The duty of care would be limited to a specific class of persons whom the defendant knows specifically to be at risk, rather than members of the public generally. o Modbury Triangle Shopping Centre Pty Ltd v Anzil! Plaintiff attacked by third party in car park! Defendant not liable o New South Wales v Bujdoso o Stuart v Kirkland-Veenstra! Police failure to act re suicide found not liable Public Authorities control factors: o The authority knew or ought to have known of a risk of harm to a specific class of persons of which the plaintiff is a member; and o The authority was in a position to directly control the risk, and o The plaintiff was vulnerable and dependent on the authority to protect against the risk (the plaintiff could not protect her own interests because, for example, of the magnitude and complexity of the risk), o The powers were conferred for the benefit of a specific class of persons of which the plaintiff was a member, rather than for the benefit of the public generally. o The failure by the authority to intervene was an operational matter rather than a policy determination, and o The imposition of liability would not be inconsistent with the statutory scheme. o Pyrenees SC v Day o Crimmins v SIFC o Graham Barclay Oysters Pty Ltd v Ryan Breach of duty by a Public Authority Some factors to consider (not necessarily all) Section 83 of the Wrongs Act 6

7 Private Nuisance Who can sue? Does P have exclusive possession? Who is liable? If D is not the creator, is D liable as an occupier? Is the interference reasonably foreseeable? If property damage, is it material? If an intangible interference: o Is it an emanation, and o Is it a serious and unreasonable interference?! Consider location, timing, frequency, duration, malice, whether harmful, sensitivity of P Is there a defence, such as contractual consent or statutory authority? Defence: consent, permit No defence that plaintiff came to the nuisance Breach of Statutory duty: Have to go through each of these elements: o The statute intends to confer a right to bring a private tort action. o The statute imposes a duty on D o P is within the class of persons protected by the statutory duty o The harm suffered by P is within the class of risks to which the statute is directed o D is in breach of the statutory duty, and o P s injury was caused by D s breach. Not designed to protect the public at large, particular class of persons only 7

8 Topic 1 The Law of Torts and Damages Categories of damages: Compensatory o To restore the plaintiff, in so far as possible, to the position the plaintiff would have been in had the wrong not been committed Aggravated o Where the defendant s wrong has been committed in a high-handed, malicious, insulting or oppressive was (Broome v Cassell & Co Ltd) Exemplary/punitive o Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself (Wilkes v Wood) Damages for living persons Fundamental principles of compensatory damages awards: Todorovic v Waller o Compensatory objective:! What is the aim?! Plaintiff to be put in the (monetary) position as if the injury had not been sustained o Once and for all rule! Under common law compensation is the money is awarded once and for all (in one lump sum), one cannot seek damages for a second time, courts will assess future losses in amount of compensation they award (sufficient for the future)! Lump sum award cannot be varied # Fetter v Beal (1701): skull broken and received 11 pounds, injury got worse over time and went beck to court 8 years later, couldn t seek further damages once and for all rule # Gilchrist v The Estate of the Late Sara Alexander Taylor NSW (2004): 12 year old 8

9 Sara got hit by a golf ball in 1987 by her brother, on the same day she was operated on in Wagga Wagga, suffered neurological issues eg epilepsy, awarded $2.5 million in 2002, January 2003 Sara died. Family retained the money.! Courts must make predictions about the plaintiff s future health, employment etc: # Payments that are made have to include hypothetic assessments of the future, predictions mad by judges without knowing what would have happened had the tort not been committed, look at circumstance of the person s life eg if a woman is of child-bearing age have to look at whether she would do on maternity leave, take into account situation and make adjusts up/down of between 5-20% # Vicissitudes of life: Wynn v NSW IMC aged 30, injured in a car accident, suffered injuries that aggravated injuries suffered in a previous car accident, she went back to work eventually but then had to leave to work in the family business part-time which was significantly less money. Went to court. Trial judge found that had she not suffered injury, she would have worked for longer (20 years) at American Express and would have been unlikely she was going to retire/take leave, courts took into account that at age 30 she may have taken time off for maternity, took money off for transport and clothing expenses, pragmatic, courts wouldn t make any adjustments about child care in the future etc adjusted compensation down 5% # Can t be awarded compensation for existing injuries: Malec v JC Hutton (1990) Malec had a back problem prior to getting brucellosis while working for the defendant, and then was 9

10 affected neurologically, suffered depression Court found the back problem was not caused by the brucellosis and he was susceptible to depression. Appealed. High Court said it couldn t be decided which act triggered the neurological condition and awarded damages although reduced. Where the is a possibility that it could either condition, damages will be awarded, predictions are never certain.! BUT court can now approve an agreement to settle by structured settlement # Can do lump sum # Can also do, if both parties agree, periodic payment, it is structured (like a salary) # Section 28N Wrongs Act 1958 (Vic) - Court may make order for structured settlement If the parties agree to settle the claim by making a structured settlement, one or more parties may apply to the court for an order approving of, or in the terms of, the structured settlement # No tax consequences # Advantages: financial management + future reassessment Between the defendant and plaintiff to sort out structure # Limitations: no power to order parties to enter into a structured settlement + only applies to settlements Level of uncertainty o The court doesn t care how, or if, the plaintiff spends the money! Gilchrist v The Estate of the Late Sara Alexander Taylor NSW the money was not taken back even though Sara died! For minors courts give money to parents/guardian! The permanently unconscious plaintiff - Skelton v Collins (1966): Persons who as a result of tortious 10

11 conduct have no awareness of their injured are not entitled to damages for pain and suffering, though they may be awarded damages for loss of amenities of life! Damages for gratuitous attendant care services Griffiths v Kerkemeyer damages: permits plaintiffs to recover the costs of nursing and home care services which are to be paid for, therefore it permits recovery of those costs even though the services may never be supplied or may never be paid for, it is not only exceptional, but anomalous (deviates from what is standard, normal or expected) o The plaintiff bears the burden of proof on damages! Up to the plaintiff to prove their loss/injury! Not up to the defendant Some terminology Special and general damages: o Special damages: refers to compensation for expenditure actually incurred, that is, can be quantified with a degree of precision as it is past economic loss (Paff v Speed) o General damages: cannot be quantified with a degree of precision as they refer to future economic loss, noneconomic loss (pain and suffering, intangible) Nominal and contemptuous damages o Nominal damages: awarded for an infringement of a personal right, but where no damage has occurred (Ashby v White), available for torts actionable per se such as trespass to land and often in the range of $5,000-$15,000 o Contemptuous damages: same as above, however a derisory (ridiculously small, inadequate) amount in recognition that the claim is unmeritorious and the plaintiff might be liable for costs (Connolly v Sunday Time Publishing Co Ltd) Heads of compensatory damages Economic loss (pecuniary damages) o Medical, hospital, rehabilitation expenses 11

12 ! Includes damages for gratuitous attendant care services o Loss of earning capacity (s28f Wrongs Act) Non-economic loss (non-pecuniary damages) o Pain and suffering: Scott v Shepherd, Skelton v Collins o Loss of amenities of life o Loss of enjoyment of life (s28lb Wrongs Act) o Loss of expectation of life Legislative reform Significant legislative reform Part VB and part VBA of the Wrongs Act 1958 (Vic) o Caps and thresholds on damages Important note: reforms not applicable 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 : sections 28C, 28LC Source of damages award is the common law NOT the Wrongs Act the Act merely modifies common law principles Economic loss pecuniary damages Medical and hospital expenses Actual medical, hospital, rehabilitation expenses o Sharman v Evans! Following a car accident the plaintiff became a quadriplegic and suffered from epilepsy. Plaintiff wanted to be cared for at home but the court found it would be more expensive than hospital think of the physical benefit no the psychiatric! Reasonable expenses recoverable- reasonable in terms of conferring significant physical or psychiatric health benefits to the plaintiff. o Medical expenses denied where the cost is great but the benefit to health is slight or speculative or relates only to amenity! Modern community attitudes to the disabled: Altmann v Dunning shows shift in attitudes of the courts 12

13 ! Diamond v Simpson courts awarded money to plaintiff to renovate her entire home to make it easier for her to use, but did not extend to the holiday home had to be reasonable Damages for gratuitous attendant care services o Relates to the cost of having a carer (someone who needs to care for you) o Gratuitous means free of charge o Known also as Griffiths v Kerkemeyer damages, or gratuitous care damages! Damages awarded despite the fact that is it often a family member who cares for you! Legal principle and pragmatism favours the award entitlement arises from plaintiff s need for the services # Irrelevant whether the plaintiff will reimburse the carer # No guarantee carer will provide services for rest of plaintiff s life! Awarded even if tortfeasor is care provider # Kars v Kars o Provisions in the Wrongs Act apply to damages for attendant care services, defined in section 28B as: a) Services of a domestic nature b) Services relating to nursing c) Services that aim to alleviate the consequences of an injury (does not include someone who cares for your business, not in a commercial nature) o Gratuitous attendant care services means attendant care services provided by another person for which the plaintiff has not paid or is not liable to pay (Van Gervan v Fenton) o Section 28IA(1) Wrongs Act 1958 (Vic): 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 13

14 # Woolworths Ltd v Lawlor: difference between pre-accident and post-accident care awarded c) The services would not have been provided but for the injury o Section 28IA(2) preclusion:! No 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 better view would be to satisfy both conditions, need for service is form more than 6 hours per week and for more than 6 months cumulative (together)! Means there is not requirement for the 6 months to be consecutive o Quantum of gratuitous care damages! Van Gervan v Fenton: Reasonable value of services (ordinarily market value), not income foregone! Now cap in section 28IB Wrongs Act: # Links the amount recoverable to average weekly Victoria earnings # Where service for more than 40 hours per week, gratuitous care damages cannot exceed the average weekly earning of Victorian fulltime workers (approximately $1,023 per week) # Where services for less than 40 hours per week, gratuitous care damages are pro-rated (one-fortieth of $1,023 = $26.57 per hour) Loss of ability to care for others At common law not available as a separate head of damages: CSR Ltd v Eddy Victorian Wrongs Act: permits damages for loss of ability to provide services to family members, but imposes limitations: o Section 28ID: No damages unless the court is satisfied that the care: a) Was provided to the claimant s dependants and 14