Topic 4: Reparation - Damages for PERSONAL INJURY Flashcards
How can damages get reduced for personal injury?
If the Plaintiff does not take steps to mitigate losses.
What are the three kinds of damages for personal injury from which case?
Teubner v Humble:
- Pain, suffering and loss of amenities
- Loss of earning capacity
- Creation of needs
What is the main case for damages in personal injury?
Sharman v Evans
What are the facts of Sharman v Evans?
- Car accident caused by D’s negligence
- P was 20 years old at time of accident and working as a secretary for 70$ a week.
- She was in a relationship with understanding that they would eventually get married
- After accident, boyfriend ditched no longer wanted to marry, the cause of which was the accident.
- She ended up with very serious injuries:
- Quadriplegia
- Epilepsy
- Lost ability to speak;
- Severe Respiratory Impairment; and
- Suffered brain damage but hadn’t lost her intellectual facilities
- She was fully aware of her condition
- Life expectancy was reduced by 20-30 years, meaning she wouldn’t live beyond 40-50 years.
- Also have to spend who life in a nursing home environment.
Courts held:
- Before assessing damages, remember trial judge has a discretion so long as they don’t go beyond parameters.
- Court had to ask:
- Was there double compensation? and
- Is P put in better position than if tort had not been committed?
What did the court consider for LOSS OF EARNING CAPACITY?
- These damages can only go up UNTIL RETIREMENT AGE.
Factors:
1. What was her earning capacity immediately before injury;
2. Potential problems of saved living expenses that she wouldn’t have to pay for:- Living conditions
- Travel expenses to work
- Previous recreational pursuits
- Potential issue of lost years (because she wasn’t expected to live until the normal retirement age of 65 years) of 15 years approx.
- Potential issue
What were the awards and deductions the courts gave for LOSS OF EARNING CAPACITY?
- She was never going to work again (just for this case because other cases might be temporary incapacitation), so starting position is calculating the total loss of earnings over a normal working life.
- Saved living expenses:
- Living conditions: no longer need to pay rent as she would be hospitalised for her whole life: DEDUCTION MADE
- Travel expenses: no longer had any to work: DEDUCTION MADE
- Recreational pursuits: wouldn’t be able to do them anymore, but would still need to find new ones since she still had mental faculties : DEDUCTION NOT MADE.
- Issue of lost years:
- She has lost 15 years of her working life, she won’t have expenses of taking care of herself for that extra 15 years because she’d not be alive: DEDUCTION MADE
- Expenses of taking care of family, spouse or dependents: NO DEDUCTION because she would still get these after death.
- Whether she would exercise her earning capacity if she had it:
- Prospects of marriage, could have withdrawn from workforce
- Court said TOO SPECULATIVE: NO DEDUCTION. DON’T TAKE INTO ACCOUNT
Drawing from the case of Sharman v Evans, in summary, what are the facts that need to be considered when assessing loss of earning capacity damages for personal injury?
- The loss of earning capacity MUST be CAUSED by the breach
- Where the person is not fully incapacitated, their earning potential could increased. How to deal:
- P argue their earning capacity would have increased; and
- Lead evidence of likely career path; and
- Impact on future earnings
- Where only partial disability: Might be some change in circumstance that allows them to work in the future. How to deal:
- Calculate loss of earning over a normal working life
- Apply a discount rate of 10-15% to account for possibility of P returning to work force
- Issue of lost years
- Saved expenses:
- Living conditions
2. Other expenses
3. Recreational pursuits
- Living conditions
- DON’T take into account marriage prospects
How did courts calculate damages for Pain, Suffering, loss of amenities and loss of life expectancy in Sharman v Evans?
- These are general damages, no specific amount. (also NO INTEREST under s60!)
- ‘pain and suffering’ are damages associated with physical pain and trauma
- ‘loss of amenities’ loss of ability to enjoy life.
Court held:
- Pain and suffering: they added it for her pain and suffering, but not an opportunity to grant punitive damages
- Loss of amenities: didn’t add it in here because already dealt with in loss of earning capacity, BETTER TO PUT IT IN HERE.
- Loss of Life expectancy: quite similar to loss of future enjoyment of life, so can’t take it into account because already accounted for.
How did the courts calculate Creation of Needs damages in Sharman v Evans?
- These are special damages, can go up UNTIL life expectancy
- Mostly calculated on costs of medical procedures P has to undergo in the future and any future care needed
Court held:
- Ongoing medical treatment is assessed at date of breach because costs of the particular treatment may be significantly higher in the future, unfair to D.
- For the remainder of P’s life, she would need to be in hospital environment.
- doctor suggested going to mums house every now and then to recover, but benefit would be minor, but she would need a nurse with her at all times and fit the mums house up.
- Cost of providing for her at hospital without visit: 108,000 approx
Cost of providing her at hospital and visit to mums house for periods: 390,000
- Court held not proportionate so lower cost because benefits were minor.
What are the changes to gaining an award of Loss of Earning capacity damages?
There is now a limit under s54 CLA:
(2) - limit is three times the average weekly earnings.
(2) - present value means deduction needs to be made because a lump sum is given where the Plaintiff has an opportunity to invest it and hence gain more money, so deduction must be made to make it at PRESENT value.
What are the changes to the Creation of Needs damages?
CLA: s59: damages for gratuitous services
(1) - conditions for being able to recover
(2) - can’t get it if they were being provided before breach.
What are the changes to Pain, Suffering, Loss of Amenities damages?
s61 - which covers general damages SO NO INTEREST
(a) - global award assigned on a scale from 0 -100
(b) - 100 is severe, 0 being not severe enough
(c) - court must look at first:
1. CLA regulation Schedule 3 Part 2, Div 1, s2: refers to Schedule 4!!!
2. Determine ISV number from Schedule 4.
How to calculate the damages if there are multiple Injuries?
- Follow steps for normal injury; then
- s3(1) Schedule 3 CLR: determine dominant injury then assign ISV under Schedule 4
- s4(1) Sch 3 CLR - where the injury scale is not sufficient s4 applies
- s4(2) Sch 3 CLR - courts can make ISV value higher than the maximum of that range
- s4(3)(a) Sch 3 CLR - can’t be more than 100
- s4(3)(b) Sch 3 CLR - CAN GIVE UP TO 25%
- s4(4) Sch 3 CLR: if court give more than 25% but must explain.
How are the damages then calculated after being assigned an ISV value?
- Go to s62 which refers to Schedule 6A
- If between 2002-2010 : Schedule 6A (1)
- If between 2010- 2011: Schedule 6A (2)
How does the courts deal with inflation on damages for personal injury?
- Medical expenses for example (creation of needs) may be more expensive in the future and hence a risk of under compensation if they don’t account for it, HOWEVER, inflation is not a straight line, it is speculative.
Todorovic v Waller: Courts DO NOT adjust for the risk of UNDER COMPENSATION for inflation. It’s too risky and not predictable.
