Wednesday, 19 November 2014

[Remedies] Reparation - Personal Injury and Defamation - Template/ Answer Guide


1.         Measure of Loss

1.1       The general principle for measure of loss is that the ‘injured party should receive a sum which insofar as the money can put him in the same position he would have been had the tort not been committed’ (Butler v Egg and Egg Pulp Marketing Board).

1.2       Where the P would not have taken a particular opportunity but for the D’s wrong, valuation of their loss requires determining what they would have done instead (Swingcastle v Alastair Gibson).  

1.3       [Date] The date of breach rule states that damages should be assessed at the time when the P’s loss originally crystallised (Johnson v Perez). However, Mason CJ, in providing the example of oil consignment, stated that the date of assessment will depend on what P would have done with the oil: “the principles governing the assessment of damages do not permit the application of rigid rules based on categories.

1.3.1    [If personal injury] Damages will inevitably be measured as at the date of judgment to protect plaintiff from adverse effects of inflation (Johnson v Perez).

1.3.2    [Unawareness] But in case where a reasonable plaintiff would not become aware of the harm until a later that, then the appropriate date of assessment will not be earlier than that date (Rentokill v Channon).             [Analogy] In the case of Rentokill v Channon, the Plaintiff purchased a house after relying on a defective report which failed to report the termites. The termites were substantial and the house had to be demolished. The Court used the date of trial to value the land for the purpose of damages. It was held that there was nothing else P could do to reasonably mitigate the loss (Rentokill v Channon).

2.         Causation & Remoteness

2.1       Factual causation must be established. Was D’s act ‘necessary condition of occurrence?’ pursuant to section 11(1)(a) of the Civil Liability Act?

2.2       Furthermore, it must be appropriate for the scope of the liability in breach to extend to harm so caused (scope of liability question) (s11(1)(b)).

2.3       Are [P’s losses] a reasonably foreseeable consequence of D’s negligence? It is foreseeable that P would [describe loss] as a result of [describe the negligence]. This is [not] the very thing which was likely to happen (March v Stramare).

2.3.1    [Remoteness case analogy] In March v Stramare, the intoxicated P crashed into D’s truck which was parked in the middle of the road. P suffered physical damages. The High Court apportioned the liability with P being 70% liable for his injuries.

 2.3.2   [Eggshell] If it is reasonably foreseeable that D’s act would bring about something other than P’s loss, D will be liable for P’s loss if the loss results from the reasonably foreseeable event (Nader v Urban Transit Authority of NSW). In that case, the young boy was diagnosed with Ganzer syndrome shortly after an accident. The cause of the syndrome was the overprotective behaviour by its parents. The Court held that such behaviour was a reasonably foreseeable event following an accident. This was not a novus actus intervenius.

2.3.3    [Plaintiff’s contribution; section 23] The acts of the plaintiff may constitute novus actus intervenius if P’s acts unreasonably add to the loss. The same standard of care applies in respect of P’s contributory negligence (s 23). Therefore, the question is whether reasonable person in the position of the P would have done the same thing (s 23(2)(a)). Subjective knowledge is relevant (s23(2)(b)). [Intoxicated] The court will presume contributory negligence where person who suffered harm was intoxicated at the time of breach of duty (s 47(1)-(2)). This is rebuttable if P can establish, on the balance of probabilities, that intoxicate was either not contributory to the breach or it was not self-induced. [Intoxicated whilst driving] If the P’s blood contained 150mg or more of alcohol in 100mL of blood, such that he was incapable of exercising effective control of the vehicle, the court will reduce D’s liability by at least 50%. Therefore, if March v Stramare occurred today, the apportionment could be slightly different. [Reliance on intoxicated D] P was at least 16 years at the time of breach, relied on D’s care and skill who was intoxicated; and was aware that the D was intoxicated (s48(1) therefore applicable). If D alleges contributory negligence on part of P, then it will be presumed (s48(2)). This is rebuttable if P establishes on balance of probabilities that D’s intoxication did not contribute to breach of duty; or P could not reasonably expected to have avoided relying on D’s care and skill (s48(3)). Reduction will be 25% or greater.

            Section 49 is also applicable. The minimum reduction will increase to 50% if D’s concentration of alcohol in blood was 150mg or more in 100mL of blood or if D was incapable of exercising effective control of vehicle.
3.         Interest

3.1       Interest on damages is awarded on personal injury damages to recognise the fact that process is lengthy. It also serves to deter defendants who delay settlements. However the court cannot award interest on general damages or damages for gratuitous services.

Personal Injury (Negligence)

1.0       There are three heads which damages for personal injury can be awarded: 1) loss of earning; 2) special damages and 3) general damages.

2.0      [Loss of earning] The facts indicate that P will not be able to continue his employment. Therefore, loss of earning damages may be awarded. Pursuant to s 54, the maximum award of damages for loss of earnings is three times the present value of weekly earnings (s54(2)).

2.1       [Allowances] Allowances will be made if it appears there would be overcompensation. Since P will not be able to work, [describe expenses] would be saved (i.e. deduction on damages) (Sharman v Evans).

2.1.1                [Working expenses] [Describe expenses] are usually incurred in the process of holding a job. This is a ‘saved expenditure’. This approach shows that the court will avoid to compensate for a gross loss when it is only the net loss that is in fact suffered  (Sharman v Evans).   

2.2       [‘Lost years’] P is also compensated for money he would have made during his lost years. The facts indicate that P would lose [__] years due to the accident. When accounting for lost years, the court deducts the amount that the person would have expended on himself during those years (Sharman v Evans). 

2.3       [If difficult] If it is difficult to precisely calculate a defined weekly loss, the court can only award damages if it is satisfied that person has/will suffer loss including  (see s55 for elements which the court need to consider).

3.0      [Special damages] Special damages are likely to awarded to cover (cost of medical treatment; hospitalization) since these are needs which otherwise would not exist.

           3.1       [Hospitalised] The court is unlikely to award cost of hospitalization along with living expenses as such would be double-compensation (Sharman v Evans).

           3.2       Future/ongoing payments: the cost of treatment [other costs] will be calculated at the date of breach so that P has an incentive to mitigate (Todorovic v Waller).

           3.3       [Gratuitous] The facts indicate that P’s (___) is performing services for P. Damages are recoverable for medical services even if they are offered gratuitously (Griffiths v Kerkemeyer). Section 59 of the CLA reflects this common law principle and provides that damages will be awarded if firstly the services are necessary but for D’s acts (s59(1(a)); secondly, the necessity (or need) arises solely out of the relevant injury (s59(1)(b)); and thirdly the services are provided for at least 6 hours per week and for at least 6 months (s 59(1)(c)).

                       3.3.1    The Court will also consider whether the assisting person is receiving any benefit from providing services (s59(3)(a)).

4.0       [General damages] The facts indicate [describe loss of amenities and pain and suffering which can be inability to play sports; headaches; etc]. These are general damages defined in s 51. Damages will be awarded in lump sum after assessing the amount by reference to an ‘injury scale value’ (s 61).

4.1       [Unsightly scars] Damages may be awarded if the subjective impact upon plaintiff justifies it. Gender does not matter (Ralevski v Dimovski).

5.0       [Discount] When calculating future loss or future gratuitous services as a lump sum, the value used must be discounted by appropriate rate of 5% (s 57).

6.0       [Multiple injuries] The injury scale value will be determined based on the dominant one (Civil Liability Regulation Schedule 3 section 3) but can be increased to reflect the level of impact, although this increase should rarely exceed 25% of the maximum of the dominant injury (CLR sch 3 s 4).

7.0       [Interest] ‘Simple interest’ (quarter’s rate of 10 year treasury bonds) is awarded (s 60(3)). However, interest is not awarded on general damages or damages for gratuitous services (s60(1)).

8.0       [Aggravated] It appears that D’s act did not fall within the description of an ‘unlawful intentional act... intended to cause personal injury’ (Henry v Thompson) and therefore, aggravated damages will not be available (s 52)


1.0       It will be presumed that the reputation is positive, if not necessary good. P may adduce evidence to establish particularly good reputation but D may also adduce evidence to show that reputation was so low there could have ben harm (Bickel v John Fairfax).

2.0       Maximum amount recoverable is limited to $355,000.00 (s 35 Defamation Act).

3.0       [If intentional] Aggravated damages may be available (Random House; Andrews v John Fairfax).

4.0       Exemplary and punitive damages are barred under s 37 Defamation Act.