Topic 4: Reparation - Damages for Tort Flashcards
How are damages calculated in Torts and the cases?
- IT is to place the Plaintiff in the position they would have been in had the tort not been committed: Butler v Egg Pulp Marketing Board (EPMB)
Cases:
- Butler v EPMB
- Swingcastle v Alastair
What is a remedy that has the remedial goal of Reparation?
- DAMAGES IN TORTS.
What are the facts of Butler v EPMB?
- Sold Egg to a third party, when the legislation imposing the requirement for egg producers to deliver all products to the EPMB, said that the property belonged to EPMB.
- They sued for conversion
Court held:
- EPMB would be put in a better position if they got the full value of the property converted because had the tort not been committed, EPMB would still have had to pay a portion of that value to the Defendant.
- So damages for EPMB was difference between amount they would have paid him and amount that D got for selling it to third party.
What are the facts of Alastair v Swingcastle?
- P finance company provided a loan to a borrower who wanted to pay off other mortgage.
- The borrower was therefore a ‘high risk’ borrower with a very high interest rate of 36.5% and in the event of default, 45.6%
- P commissioned D to do a valuation report on land before executing loan.
- His report was done negligently and gross overestimation.
- Borrower defaulted on loan and when P exercised it’s power of sale, was much less than the valuation
- PLUS by the time they sold house, significant amounts of interest had been accumulated on the loan.
- P sued D for negligently evaluation property.
Court held:
- D argued P can’t claim because if the report hadn’t been negligently done, evidence showed P would not have entered into the loan agreement and hence not incurred any loss.
- Courts said, it is what the P would have earned from applying that amount to ANOTHER USER OF BORROWER (because that’s what they would have done had they not entered into loan)
- Furthermore, the interest rate they could claim was not the high risk borrower rate, but what they would give to a normal borrower.
- Court also added in expenses for D’s negligence such as agent commission on sale of house and solicitor fees, but deduct the sale price from damages and what had been paid by borrower.
At what date are common law damages assessed for torts?
- at the date of breach.
Can the rule that damages are assessed at date of breach for torts be departed from?
Yes, in the circumstances of:
- Goods that are a traded commodity and prices fluctuate : suggested in Johnson v Perez
- Where they have taken steps to mitigate: Rentokill v Channon
What are the facts of Johnson v Perez?
- P had sustained series of workplace accidents throughout 1968-1973.
- P instructed D (solicitors) to ocmmence personal injury actions against his former employer
- D’s did commence, but dismissed in 1980 and 1983 because D failed to prosecute actions properly and had been negligent.
- P sued solicitors
Court held:
- This claim was in 1987
- P’s loss was failure to recover damages in respect of his personal injuries caused by D’s negligence.
- Trial assessed damages at the date of 1987 trial.
- D appealed saying it should be assessed at the time when D’s would not have failed (i.e. breach)
- HC Agreed with D’s.
- P suffered the loss at that moment, not at the date of later trial.
- They ACKNOWLEDGED that there could be cases where damages could be assessed at later date.
What are the facts of Rentokill v Channon?
- P wanting to purchase house
- P hired Rentokill to give report saying it’s free of termites
- Report done negligently
- P moved in, in reliance on that report.
- Situation so bad, she had to demolish house. She sued Rentokill for negligently preparing report.
Courts held:
- D had been negligence
- Assessing damages if report done properly they would have suggested eradication problem immediately and would have solved problem.
- At the date of trial, she would have:
- Value of land (which she still had); and
- Value of a termite free house (which she didn’t have).
- COA held date of trial appropriate because she had taken steps to mitigate loss
- D argued P should have sold house to mitigate, court said, if she did, she would have made a loss and be in financial detriment because she didn’t have money to buy another house to live in.
- She had taken the necessary steps in demolishing her house.
What are the two limbs for a causation test and which case?
March v Stramare:
- Would P’s loss have occurred ‘but for’ D’s negligence?; and
- IF so, has a subsequent event rendered the D’s negligence causally irrelevant? (remoteness)
What are the facts of March v Stramare?
- P was drunk driving. Immediately after accident, his blood concentration was 1.8%.
- He had crashed into a truck which was lined up in the middle of the road with it’s hazard lights flashing but in the dark
- P didn’t see truck, was injured.
- Was P’s drunk driving a supervening act that broke chain of causation?
Courts held:
- No because even if it was a normal driver not drunk or not being negligent, would still most likely crash into a truck in the middle of the road with only hazard lights on.
What are the relevant CLA sections for causation and remoteness?
SECTION 11:
(a) - factual causation i.e. ‘but for’ test
(b) - appropriate to extend a scope of liability i.e. remoteness test in March v Stramare.
What is remoteness concerned with? And what case?
- Whether the consequences of the tort are REASONABLY FORESEEABLE.
Nader v Urban Transit Authority (NSW)
What are the facts of Nader v Urban Transit Authority (NSW)?
- 10 year travelling home from school on bus
- D operated negligently and opened doors before it came to a full stop
- 10yo fell off bus and suffered minor injuries
- Nothing serious but parents were very overprotective
- Boy developed a rare condition which was seen in less than 100 cases at the time
- There had been a delay in diagnosis and treatment.
- Expert evidence parent’s overprotective behaviour after the accident caused the syndrome to develop. Furthermore other family problems likely to have exacerbated the problem
Court held:
- First test of causation: D’s negligence set everything in motion
- Second test whether too remote: Parent’s conduct didn’t amount to supervening act
- Loss not too remote because it was reasonably foreseeable that the accident would invoke a response from the parents.
Can interest be awarded on an award of damages?
- Yes, but only simple interest because it takes a while for the trial to be heard and the aim is to put the P in the position they would have been in had tort not committed.
- Money is given at the trial in the amount necessary to place the P in the position they would have been in AT THE DATE OF BREACH. But because of inflation, money at that point in time is worth less, so have to add interest, but not compound (unlike Sempra metals)
Is there a restriction on an award of damages for torts?
Yes, in the CLA: s60!
(1) can’t be paid where
(a) general award of damages (like pain and suffering and loss of amenities)
(b) damages for gratuitous services provide to an injured person
s60(3) - interest in the amount of tenure treasury bonds published in a document from time to time.
