Negligence: Apportionment/Assessment of Damages and Alternative Methods Flashcards
GENERAL/SPECIAL and PECUNIARY/NON-PECUNIARY
• General damages are ones that can’t have a specific price attatched to them
• Special damages are able to have a specific cost applied to them
• Pecuniary means the damages was economic and vice versa
• General Damages are non-pecuniary/special are pecuniary
Indemnity Principle:
• Calculated net of tax: s60 Civil Proceedings Act 2011 (Qld)
• Includes Medicare Levy
SPECIAL DAMAGES (PAST)
- Special damages are awarded in respect of actual losses incurred from the date of the incident up to the date of the verdict which are capable of precise calculation or estimation. Paff v Speed
- Ambulance charges, charges for medical hospital and professional nursing services, travel and accommodation expenses incurred in obtaining medical services, costs of rehabilitation, special clothing and special equipment, the costs of modifying houses, the costs of funds management, the costs of professionally supplied home maintenance services. CSR Ltd v Eddy
- It is not necessary for costs to actually have been incurred at time of trial, but it is necessary that they will be incurred. Blundell v Musgrave
GENERAL DAMAGES
• Step 1: Identify plaintiff’s injury/injuries
o CLR sch 4
o 0-100 range of ISV
o Court Identify based on medical reports, for multiple injuries identify dominant injury CLR sch 3 s3 (injury with the highest ISV range) CLR sch 8 definition
• Step 2:
o Court allocates the ISV within the identified ISV range i.e. 6-10 CLA s61
o Court must regard to:
▪ Provisions in Sch 4 in respect of injury CLR sch 3, s8
▪ Other matters to the extent they are relevant CLR Sch 3 s9
▪ Degree of insight, whether the plaintiff has knowledge of their situation
▪ Age and life expectancy affected due to injury (pain for the rest of their life) Sharman v Evans
▪ Pain and Suffering – actual physical pain, worry, discomfort, anxiety, inconvenience Teubner v Humble
• Relevant factors are the circumstances like distress Skellern v Collins
▪ Loss of amenities i.e. capacity to enjoy life to the full Teubner v Humble
• Can claim loss of cultural fulfilment Napaluma v Baker
▪ Pre-existing condition
• Take into account aggravation of any pre-existing condition CLR sch3 s 7
• Step 3:
o Apply ISV to general damages calculation in CLR as specified by CLR s8
PAST HOSPITAL/ MEDICAL EXPENSES
• Assessed from date of accident and trial/settlement
• Must be reasonably necessary: Sharman v Evans
• The plaintiff need not be under any legal liability to reimburse some other party who has paid such expenses. Donnelly v Joyce
• An act of benevolence by a third party cannot be relied upon by a defendant to reduce payment to the plaintiff. Kars v Kars
However,
If the purpose is to benefit the defendant, it is set off.
• Fees paid to doctors to examine with a view of giving evidence in litigation but not for treatment are not reasonable. Laut v White Feather Main Reefs
• A plaintiff should use free facilities if available to mitigate the loss. Taccone v Electric Power Transmission
FUTURE HOSPITAL/ MEDICAL EXPENSES
• Must be reasonably necessary: Sharman v Evans
• Assessed from fate or trial/settlement to expected recovery/death
o Specific future events assessed actual probability not on balance of probability, Based on expert medical evidence Malec v Huton Pty Ltd
i.e. If there is a 40% chance of requiring medical treatment in the future then the court will award 40% damages
Order:
1. Must be reasonably necessary Sharman v Evans, 2. Claim as special damages, 3. For future costs (date of settlement to expected date of death) Malec v Hutton Pty Ltd
GRATUITOUS SERVICES
- An award of damages for gratuitous services provided to an injured person. s60(1)(b) CLA Griffiths v Kerkemeyer
- These damages are awarded when a family members gives up there job etc to care for the plaintiff. They are awarded at the market value of the services not as the loss of salary of the person giving up their salary. Van Gervan v Fenton
- Past and future service can be claimed s59
- Services must be: s59 (1)
- Necessary, need arises solely from injury, Provided for at least 6 hours a week for at least 6 months
- Take into account what was done before: s59 (2)
- Take into account offsetting benefit and periods for which no care will be required. The court will take into account what periods of time the plaintiff is in the hospital and deduct that from the damages awarded s59 (3)
EGG-SHELL SKULL
- The defendant must take the plaintiff as found with all the weaknesses, beliefs, capacities and attributes. Nader v Urban Transit Authority
- Can apply to property. McColl v Dionisatas
ONCE AND FOR ALL
• Damages for a single cause of action must be assessed at common law once and for all. Fitter v Veal
UNLESS
• The tort is continuous, Adams v Ascott Iron Foundry
• There is fresh evidence in which case an appellate court can reopen a previous award but only in an exceptional case. Murphy v Stone-Wallwork (Charlton) Ltd.
LUMP SUM
- Damages must be awarded as a lump sum unless there is statutory authorisation. Todorovic v Waller
- Court has no duty to ensure damages are used in the correct manner. Todorovic v Waller.
- A court may, on the application of the parties to a claim for personal injury damages, make an order approving of or in the terms of a structured settlement even though the payment of damages is not in the form of a lump sum award of damages. s65 Civil Liability Act 203 (Qld)
DUTY TO MITIGATE
• A plaintiff has an obligation to mitigate damage and may be denied compensation for a failure to fulfil this obligation at least to the extent where mitigation would have prevented further harm. Burden is on defendant to show plaintiff did not mitigate. Munce v Vinidex
• A plaintiff is allowed a reasonable time to consider the position and weigh the risks of action in mitigation Hisgrove v Hoffmann
• Factors personal to the plaintiff are relevant Fazlic v Milinginbi
• Policy consideration will come into play when considering whether action was required for mitigation. CES v Superclinics Australia
i.e Plaintiff sued in wrongful birth. Could have had abortion or put child up for adoption
• Any additional loss or expenses incurred in mitigation may be claimed for compensation. The Oropesa
• If a defendant is not satisfied with the action taken by a plaintiff to mitigate damages, the defendant may give the plaintiff written notice suggesting specified action the plaintiff should take to mitigate damages. s53(1) Civil Liability Act 2003 (Qld)
• Subsection (1) does not limit the plaintiff’s duty to mitigate damages. s53(3) CLA
• In assessing damages for personal injury, the court must—
• consider whether the plaintiff has failed to take reasonable steps to mitigate damages by not following suggestions made under this section or a written notice given under the Personal Injuries Proceedings Act 2002, section 26; s53(4)(a) CLA
• if the notice suggested that the plaintiff undergo medical treatment or rehabilitation therapy of a specified kind—consider whether the notice was accompanied by an offer by the defendant to pay for the cost of the treatment or therapy; and s53(4)(b) CLA
• If it appears the plaintiff has failed to take steps to mitigate damages by not following the suggestions—reduce the plaintiff’s damages to an appropriate extent reflecting the failure if, in all the circumstances, the court considers that the plaintiff’s failure to follow the suggestions was not reasonable. s53(4)(c) CLA
PAST LOSS OF EARNING CAPACITY
• A plaintiff is entitled to be compensated for loss of earnings from the date of the incident to the date of the trial. In computing loss of earnings to the date of trial, the loss is the gross amount in respect of loss of future earning capacity. Atlas Tiles v Briers
• In making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2). s54(1) Civil Liability Act 2003 (Qld)
• The limit is an amount equal to the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings. s54(2) CLA
• The court will consider any sick leave payed to the plaintiff and deduct from the awarded damages Graham v Baker
Current AWE approx. $1400
Indemnity Principle:
• Calculated net of tax: s60 Civil Proceedings Act 2011 (Qld)
• Includes Medicare Levy
FUTURE LOSS OF EARNING CAPACITY
• Assessed from date of trial/settlement to pre-injury date of retirement
• Pecuniary general damages
• Step 1: Period the plaintiff might have been expected to earn if there had been no injury Skelton v Collins
o What is the expected date of recovery
• Lost years compnonent – If now plaintiff will die before would have retired (if had no been injured)
o Period of waiting reduced due to expectations plaintiff will die earlier due to injuries
o Court reduces amount awarded for this period as maintenance of plaintiff required
o If the facts of the case suggest the plaintiff is going to die before they would have retired so loss will be assessed to date of expected death then loss from then will be heavily reduced
o Skelton v Collins
• Step 2: Evidence of earnings at time of incident s55 CLA
• Step 3: Vicissitudes of Life Wynn v NSW Ministerial Corporation
o Cosider any specific future events that may impact on earnings (good and bad)
▪ Promotions, pre-existing health problems
▪ Specific future events based on probability not balance Malec v Hutton Pty Ltd
o Hypothetical events that may affect the plaintiffs working life
▪ Deduction to reflect the possibility of such events Wynn v NSW Ministerial Corporation
▪ Usually a 15% reduction Wynn v NSW Ministerial Corporation
INDEMINITY
- An award of damages should not enrich the plaintiff, nor should the plaintiff be under compensated.
- Protects against duplication between heads of damage Sharman v Evans
- For payments like social security and workers compensation, collateral payments are not set-off as plaintiff must repay them
- Insurance policies are not taken into account at all by the court
- Gifts and Charity:
- If plaintiff receives charitable payment/gift court has to decide on the intent behind the payment, whether it is a charitable gift or to compensate for a particular loss Zheng v Cai
- Items deemed as charitable gifts will not be considered by the court as already received compensation
- Interest allowed on special damages:
- Given on past losses CPA s58
- At the desecration of the court CPA s58(3)
- At no more than the rate of a 10 year Treasury bonds rate CPA s58(2)
- No award of interest on general damages or damages awarded for gratuitous services CPA s58(1)
- For future economic losses a Discount rate is applied as lump sum payments provide plaintiff with opportunity to invest and be overcompensated. Loss of earning capacity, future expenditure and gratuitous care payments discounted by 5% CLA s57
OTHER PECUNIARY LOSSES (PAST)
• Any other expenses may be claimed if they were reasonably necessary for the plaintiff’s condition. Diamond v Simpson (No 1)
• Family members visiting can be claimed Wilson v McLeay
• The costs of appointing an administrator and the management of funds may be claimed. Willett v Futcher
HOWEVER
• Will only extend to reasonable charges and expenditure incurred during the intended life of the fund. Nominal Defendant v Gardikiotis
INTEREST
• Interest is awarded to compensate the plaintiff for having being kept out of money, which theoretically was due to him at the date of the accident. Thompson v Faraonio
• The court may order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment. s58(3) CPA
• This section does not authorise the giving of interest on interest s53(4)(a) CPA
Discount Rate
• For future economic losses discount rate applied as lump sum payment provides plaintiff with opportunity to invest which is overcompensation
A court can not order the payment of interest on—
• An award for general damages s60(1)(a) CLA
• An award of damages for gratuitous services provided to an injured person. s60(1)(b) CLA
Interest awarded on damages compensating past monetary loss—
• Must not be more than interest at the appropriate rate; and s60(2)(a) CLA
• Must be related in an appropriate way to the period over which the loss was incurred. s60(2)(b)
• The appropriate rate is the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Capital Market Yields—Government Bonds—Daily—F2’ as at the beginning of the quarter in which the award of interest is made. s60(3) CLA
“appropriate rate” is the rate for 10 year Treasury Bond (currently approximately 3.19%)
