6. Assessment of Damages Flashcards
Summary of CLA 2002 (NSW) s. 12(1)
(a) . Applies to awards of past economic loss of earning capacity
(b) . Applies to future economic loss of earning capacity
(c) . Applies to loss of expectation of financial support.
Summary of CLA 2002 (NSW) s. 12(2)
Court is to disregard amounts P claims of weekly earning (but for injury/death) have exceeded an amount 3 times average weekly earnings at the date of award.
Summary of CLA 2002 (NSW) s. 12(3)
(a) Weekly earning is an estimate by Australian statistics as the weeky earning of all employs of NSW,
(b) If Australian Statistician cant estimate, amount to determined by other prescribed ways.
Summary of CLA 2002 (NSW) s. 13
(1) No award of damages for future loss unless P satisfies assumptions about future earning capacity on which the award is to be based on the most likely future circumstances, but for the injury.
(2) Court to adjust award for future damages on those assumptions by a percentage possibility that the events might have occured but for the injury.
(3) Awards for future economic loss, court must state the assumptions the award was based aswell as state the pecentage used to adjust.
Summary of CLA 2002 (NSW) s. 14
(1) If it involves economic future loss, the current value of the future loss is to be determined by using the ‘Prescribed discount rate’
(2) “Prescribed discount rate is”
(a) a discount rate % prescribed be regulations or
(b) if no % prescribed – 5% discount.
(3) This section does not affect another laws related to such if discounts. Only this section.
Summary of CLA 2002 (NSW) s. 15
15 Damages for Gratuitous attendant care services
(1) “attendant care services” means services of domestic nature, related to nursing, and aimed to alleviate the consequences of the injury.
“Gratuitious attendant care services “ is similar to above, but P has not paid for or is not liable to pay.
(2) No damages for Gratuitious attendant care services unless: It as not reasonable, It was needed because of that injury, There would have not been those services but for the injury
(3) No damages for Gratuitious attendant care services **unless it was for at least 6 hours a week and paid for 6 consecutive months**
(4) If there is more than 40 hours of service per week, damages for gratuitious care must not exceed average weekly earning.
(5) If less than 40 hours, damages must not execeed amount calculated at the hourly rate of 1/14 the amount determined by 15(4)(above)
Summary of CLA 2002 (NSW) s.15A
(1) Relates to the Dust Diseases Tribunal Act 1989
(2) In relation to gratuitous attendant care serives, award must not exceed the same hourly rate as provided in section 15 regardless of hours.
(3) Has nothing to do with paid attendant care services.
Summary of CLA 2002 (NSW) s. 15B
o Dmgs For Loss Of Capacity To Provide Domestic Services):
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(1) – Definitions:
- “Assisted care” : (a) caring for aged for frail dependents, suffering from physical and mental disability, (b) dependents are minors where P is the parents, which includes providing accommodation to dependents.
- “dependents” – (a) can be wholly or in part dependent on P who is the (i) husband or wife of P, (ii) a de facto partner of P, (iii) a relative, adopted or otherwise, (iv) any person living in the household.
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(2) - Damages may be awarded to P for loss of capacity to provide GDS to P’s dependents, but only if:
- (a) they were dependents according to the definition of sub section 1, and
- (b) dependents were not or will not be capable of self care because of age or incapacity, and
- (c) it was reasonable to expect, but for injury, P would have provided the services to the dependents (i) for at least 6h/week, and (ii) 6 consecutive months, and
- (d) There is a need to provide those services in those time which is reasonable.
What needs to be pointed out and discussed when assessing damages?
These are just the complete headings and subheading to used for the exam.
“Heads of Loss”
A. Economic Loss
- Past out of pocket expenses (Graham v Baker; Sharman v Evans )
- Past lost of earnings (Malec v JC Hutton)
- Loss of future earnings
(-) the difference between earning capacity and loss of wages (Cullen v Trappell; Atlas Tiles v Briers)
(i) Loss of earning capacity under statute
(a) Section 12
(b) Section 13
(ii) Determining probability at common law (Malec v JC Hutton)
(iii) Vicissitudes and contingencies at common law (Wynn v NSW Insurance Ministerial Corporation)
(iv) Current proven condition at common law (Graham v Baker; Thompson v Faraonio )
(v) Deduction of Future expenses (Sharman v Evans)
(a) Childcare (Wynn v NSW Insurance Ministerial Corporation)
(vi) Lost Years (Sharman v Evans)
4. Lose of future entitlements
(i) Superannuation
(a) Superannuation entitlement under Statute s15C (Najadovoski v Crnojovic )
(ii) Sick Leave & Paid Leave
5. New economic needs
(i) Past and future care costs -
(a) Gratuitous attendare care services under CLA s 15
(b) Gratuitous care under common law (Sharman v Evans; Griffits v Kerkemeyer)
(ii) Medical expenses (Sharman v Evans )
(iii) Reduced ability to provide care to others CLA s(15B)
6. Discounts of damages
(i) CLA Section 14
(ii) Order of deduction at common law (Todorvic v Waller)
7. Collateral sources (eg. Social Security)
- Collateral source rule (National Insurance NZ v Expague)
- Superannuation (CLA s3(b))
- Insurance (CLA s3(b); National Insurance NZ v Expague)
- Employment entitlements (Graham v Baker; Jones v Gleeson)
- Sickness benefits, pensions, unemployments benefits (Social Security Act 1991 (Cth))
- Gifts (Montary donation from sources that are not D)
- Intent of collateral source (Zheng v Cai;National Insurance NZ v Expague )
B. Non - Economic Loss
- General Damages
- Section 3 - CLA
- Pain and suffering & Loss of amenities of life (Sharman v Evans; Skelton v Collins; Del Ponte v Del Ponte)
- In the absense of P’s consciousness or awareness of loss. (Skelton v Collins)
- Damages for shortening of life expectancy (Sharman v Evans)
- Assessing non economic loss under statute
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Section 16
- Civil Liablitly (NEL Order 2010)
- Method under s 16
- Tariffis for NEL s 17A
- Meaning of ‘most extreme case’ (Southgate v Waterford; Woolworths v Lawlor [2004] NSWCA 209)
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Section 16
- Interests of damages and discounts under s.18 (1)
Headings for ‘qualification for compulsory principle’
- Mitigation (Glavonjic v Foster [1979] VR 536)
- Taxation (Atlas Tiles v Briers (1978) 144 CLR 202)
- Wrongful Death (Sharman v Evans (1977) 138 CLR 563; Compensation to Relatives Act 1897 (NSW))
- Public Policy and damages
Latin term which means ‘restoration to original condition’
What does it mean?
restitutio in integrum
- At common law, P are entitled to be restored to the position they would have been but for the defendant’s wrongdoing.
“Once and for all”
Meaning and case
If P suffers more damage than is anticipated, he cannot recover more. Same can be said for D if damages suffered by P are less than anticipated
Court must do their best to calculate the reasonable balance of probabilities, avoiding optimism and undue pessimism.
(Murphy v Stone-Wallwork [1969] 1 WLR 2023)
What authority allows for a structured settlement?
- (Motor Accident Compensation Act 1999, section 143)
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(Section 24 of CLA) -
- agreement payment in form of periodic payment that can be in part or all damages, annuity or other agreements.
Todorvic v Waller (1981) 150 CLR 402 on damages awards conditions?
Court will have no say how the recovered damages are used by the successful plaintiff.
What are the general principles that apply to all damages?
- P has burden of proof to prove the injury/loss (Todorvic v Waller (1981) 150 CLR 402)
- “Once and for all” rule (Murphy v Stone-Wallwork [1969] 1 WLR 2023)
- Damages awarded unconditionally (Todorvic v Waller)
- Date of assessment is the date of trial commencement.
