Damages and Alternate Means of Compensation Flashcards
Compensatory damages
Place the plaintiff in the position as if no tort has been committed.
Indemnity principle
an award of damages should not enrich the plaintiff, nor should the plaintiff be under compensated.
Heads of damages
- Hospital and medical expenses
- loss of earning capacity
- general damages
Special damages
are calculated with precision, are pecuniary.
General damages
not capable of precise calculation
- Pecuniary- relate to future economic losses
- Non-pecuniary- relate to things that are not economic e.g. pain and suffering, loss of amenities- loss of capacity to consciously enjoy life to the fullest. etc.
- Loss of expectation of life
- Disfigurement
- Monetary value given to subjective feelings
- Injury identified in CLR 2014 Sch 4
- Court allocates injury scale values within relevant range
- ISV applies to general damages calculation in CLR.
Hospital and Medical
- Past hospital and medical expenses
○ Assessed from date of accident to trial/settlement.
○ Special damages (i.e. pecuniary and can be proven).
-Future hospital and medical expenses
○ Assessed from date of trial/settlement to expected recover/death. - Specific future events assessed actual probability not on balance of probabilities. Malec v JC Hutton Pty Ltd.
- Must be reasonably necessary
○ Duty to mitigate
- Must be reasonably necessary
Gratuitous Services
- Plaintiff may claim for gratuitous services provided to them: *Griffiths v Kerkemeyer
- Part of the plaintiff’s claim
- CLA s 59 must be satisfied:
○ Services must be necessary;
○ The need arise solely from the PI arising from the accident; and
○ Services must be provided for at least six hours a week and for at least six months.
Assessing gratuitous services
- Compare what services were provided before injury : CLA s 59(2).
○ Compensation for services now provided because on injury.- Take into account any off-setting benefit received by carer and any periods care will not be required: CLA s 59(3)
○ Indemnity principle. - Market value of services provided, not loss to carer: Van Gervan v Fenton
- Carer may be the defendant: Kars v Kars.
- Must be necessary, arise from accident and be provided for at least 6 hours a week for 6 months: CLA s 59 (1).
- Take into account any off-setting benefit received by carer and any periods care will not be required: CLA s 59(3)
Loss of earning capacity
- Plaintiff recover for any diminution in capacity to earn to the extent it is productive of financial loss
- Comparison between earning capacity before and after injury
- Damages capped at 3 x Average Weekly Earnings (AWE): CLA s 54
Past loss of earning capacity
- Assessed from date of accident to date of trial or settlement.
- Special damages
○ Look in facts for any past income.
Future loss of earning capacity
- Assessed from date of trial to pre-injury date of retirement or date of expected recovery.
- Pecuniary general damages.
Step 1 – Identify the period for which plaintiff might have been expected to earn if there had been no injury: Skelton v Collins- Consider the effect of injuries: – Never work again? Will fully recover in future? Will only ever work in a limited capacity?
- If incapacitated for rest of life - from date of judgment/settlement until age of expected retirement prior to injury – Facts may indicate intended retirement (eg wishful thinking or pre-existing condition), if do not, assume retirement at 65 years
- If full recovery - from date of judgment/settlement until date of recovery
- Lost Years Component - If now plaintiff will die before would have retired (if had not been injured) – Period of earning reduced due to expectation plaintiff will die earlier due to injuries: Skelton v Collins
- Court reduces amount awarded for this period as no maintenance of plaintiff required
- Injured – unable to work again Age 45 Expected death from injuries at age 60 Would have retired at age 65. Therefore lost years are 5.
Step 2 – Evidence of earnings at time of incident and future career etc – Adult with established career? Child? Erratic job history?
- Remember CLA s 54: Damages capped at 3xAWE - If loss of earnings cannot be calculated precisely by reference to weekly loss, compensation only if ‘that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters’: CLA s 55
Step 3 – Vicissitudes of Life
- Consider any specific future events that may impact on earnings (good and bad)
– Promotions, pre-existing health problems …
– Specific future events assessed actual probability not on balance of probability: *Malec v Hutton Pty Ltd
- Also consider hypothetical events that may affect the plaintiff’s working life – Deduction to reflect the possibility of such events: Wynn
Duplication of damages
Overlap between heads of damages
Collateral payments
Not set off as plaintiff must repay.
Sick pay
Set-off plaintiff has not suffered loss of income if they received sick pay.
Insurance policies
not set off
