Damages

Question 1

Definitions of damages

Answer 1

Reparation of a civil wrong by provision of a sum of money awarded by the court

Question 2

Case outlining basic principles of damages

Answer 2

Todorovic v Waller

Question 3

(4) basic principles of damages

Answer 3

1. the sum of money should aim to restore P to the position he/she would be in but for D’s wrongdoing (Livingstone v Rawyards)
2. the ‘once and for all’ rule - damages are awarded as a lump sum and cannot be reassessed even if circumstances change
3. damages are awarded unconditionally, with no obligation of P to spend them on what they were allocated for
4. the burden lies on the plaintiff to prove the injury or loss for which he seeks damages

Question 4

What CLA sections apply to ‘loss of earning capacity’?

Answer 4

s12 (damages for past or future economic loss)

s13 (future economic loss - claimant’s prospects and adjustments)

Question 5

What are the heads of economic loss?

Answer 5

• Loss of earning capacity
• Past out of pocket expenses
• Loss of entitlements
• New economic needs created: past and future care costs

Question 6

Cullen v Trappel

Answer 6

[loss of earning capacity]
Barwick CJ “the problem is to value the capital asset of the injured person, namely, his capacity to earn money” not “merely to replace wages”

Question 7

Atlas Tiles Ltd v Briers

Answer 7

[loss of earning capacity]
Barwick CJ: capacity to earn can still be estimated, even if ‘no current earnings are available to demonstrate its worth’

Question 8

CSR v Eddy

Answer 8

[loss of earning capacity]

“damages are awardable only to the extent that the loss of capacity has been or may be productive of financial loss”

Question 9

British Westinghouse Electric

Answer 9

Past out of pocket expenses are recoverable upon proof of payment

Question 10

Outline CLA provisions for ‘loss of entitlements’

Answer 10

‘15C Damages for loss of superannuation entitlements’

(1) max amount is based on previous assessment of earning capacity
(2) relevant % is minimum required by law to be paid by employer as superannuation contributions

Question 11

Graham v Baker

Answer 11

[loss of entitlements; sick pay]
P entitled to claim for sick leave even if sick pay was given, as he “may incur a loss because he may face the possibility of being sick in future… at his own expense”

Question 12

Outline CLA provisions for ‘new economic needs created’

Answer 12

s15B loss of capacity to provide domestic care to others
s15 Damages for gratuitous attendant care services
(2) there must be a reasonable need for the service that arose because of the injury
(3) care must be provided for at least 6 hours a week for at least 6 consecutive months
(4) damages cannot exceed average weekly earnings for NSW

Question 13

Sharman v Evans (new economic needs created)

Answer 13

“assessed on the basis of a lifetime substantially spent in hospital”

Unless P can demonstrate substantial advantage in the more expensive option, they will be awarded damages for the cheaper

Question 14

4 Categories of non-economic loss

Answer 14

pain and suffering
loss of enjoyment/amenity of life
loss of expectations of life
disfigurement

Question 15

General outline of non-economic loss

Answer 15

Compensation for subjective suffering: “mental distress due to the realisation of the loss” (Sharman v Evans)

Question 16

Outline of CLA for non-economic loss

Answer 16

s16 Determination of damages for non-economic loss

(1) for damages, must be at least 15% of most extreme case (e.g. quadriplegia would be most extreme)
(2) TABLE - corresponding % of most extreme with % of max damages payable for non-economic loss

Question 17

Skelton v Collins (pain and suffering)

Answer 17

[19 y/o severe brain damage, likely to be unconscious in hospital until his death]
Findings: lower non-economic loss damages because unconscious: life “not a state of being… but as a thing to be lived consciously”

Question 18

Sharman v Evans (pain and suffering)

Answer 18

Pain and suffering includes: numerous painful operations, continuous pain in sensory areas, mental anguish at deceased prospects
- ‘Loss of expectation of life’ included in ‘pain and suffering’ as it causes mental suffering

Question 19

Court must be wary of…

Answer 19

“compensating twice over the one detriment” (Sharman v Evans)

Question 20

Sharman v Evans (loss of amenity and enjoyment of life)

Answer 20

Comparison “between present state and former prospects of a happy and rewarding life”

Question 21

Loss of expectation of life doesn’t…

Answer 21

carry as much weight as the court cannot determine the quality of life had the accident not occurred (Skelton; Sharman)

Question 22

Outline influence of ‘collateral sources’

Answer 22

Zheng v Cai
money paid as gift should not be taken into account to reduce damages. Charitable gift, not intending to reduce D’s liability to pay damages for his/her wrong

Question 23

Whitaker v Commissioner of Taxation

Answer 23

Post judgment interest on damages for future losses is tax free
S18 CLA prohibits interest being awarded on past non-economic loss