71116 remedies fully annotated exam notes PDF

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71116 Remedies Exam Cheat Sheet

Damages for personal injury (Tort and Contract) Introduction In the case of personal injury and death, damages are assessed the same way whether the action arises in negligence or an intentional tort, from a breach of contract or under statute  CLA Part 2 restriction on damages applies to all actions (s 3B sets out exclusions from Act)  Two rules governing the assessment of future economic losses : o All future losses are assessed in trial date values  E.g. if P’s earning capacity is destroyed, the award for future loss of earnings is based on what P, if not injured, would have been earning at the date of the trial o Because P is getting damages now, for losses that will not accrue or be realised for some time, future economic loss damages are discounted to their “present value”  5% under legislation, 3% at common law  Actuarial tables used to calculate 

Recognised heads of damages    

Loss of earning capacity Medical and related needs; and Loss of parenting or domestic capacity Non-economic loss o Pain and suffering o Loss of amenities or enjoyment of life o Loss of expectation of life o Disfigurement

Causation (concerned with type of loss) 

Common law test or causation re-stated for the torts in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 – ‘but for’ test to determine factual causation o CLA s 5D(1) governing causation apply only to actions arising from negligence, where the Act otherwise applies, so the common law of causation remains applicable in other cases (legal causation + policy considerations

Remoteness (concerned with type of loss) Intentional torts and defamation - Any harm actually intended by the D is never too remote Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 o ‘direct consequences test’  Negligence and nuisance – test of reasonable foreseeability Wagon Mound (No 2), precise manner in which injury occurred need not be foreseeable Chapman v hearse (1961)

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Standing Case can be brought or continued by or against estate of the deceased party LRMPA 1994 (NSW) s 2(1)  However, where estate is bringing the action (whether or not the death resulted from the wrong), the estate cannot recover LRMPA 1994 s 2(2)(a)(i), (ii) o Exemplary damages o Damages for loss of earning capacity after the time of death

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Loss of earning capacity 

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P must prove Medlin v SGIC (1995) 182 CLR 1 o His capacity to earn has been diminished or lost because of injury; and (“lost capacity” not “lost earnings”, therefore, non-realised potential compensable) o That loss of capacity has been, and/or will be, productive of financial loss (so that a plaintiff who has permanently retired from the workforce cannot recover) Once the plaintiff’s pre-injury earning capacity is determined, the court then considers the plaintiff’s residual earning capacity, which is deducted o Once the plaintiff establishes that his pre-injury earning capacity has been lost, the existence of a residual earning capacity will be asserted by the defendant who will then be required to adduce evidence to prove it Woodhead v Barrow [1993] Aus Torts Reports 81-238 If injury contributed materially to decision to retire (causation), questions of mitigation and reasonableness do not therefore arise CLA s 12 (Part 2) – any pre-injury earnings in excess of 3x a.w.e. is disregarded o So if P’s pre-injury earnings exceed statutory maximum, no damages will be recoverable Also reduced by contingencies (see below)

Sharman v Evans Facts o 20 y/o secretary and bible studies student, was rendered quadriplegic and epileptic. At time of injury she had been earning 70 a week and spending every cent. But for the accident, she would soon have permanently ceased her working life to marry, and would have been financially secure. Accident destroyed both her capacity to earn and prospects of marriage  Finding o Court took expedient solution of equating, for the purposes of pre-injury earning capacity  the financial security of marriage with earning capacity, and then assuming that she would have worked to retirement age without marrying

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Lost years 

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Where P’s life expectancy is reduced by injury (non-economic), “lost years” are the period (if any) by which the P’s working life expectancy is reduced. Damages for loss of earning capacity are awarded for the “lost years” but: Any expenses P would have incurred in self-maintenance are deducted Skelton v Collins (1966) 115 CLR 94 Always assessed on total incapacity (no residual earning capacity)

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Medical and related expenses  

No max or min recovery is imposed by legislation, but like other economic losses, future expenditure is reduced to its present value CLA s 14 (Part 2) Reduced by contingencies, where the wrong accelerates a medical condition that may have occurred sooner or later in any event Malec v JC Hutton Pty Ltd (see below)

Sharman v Evans See above for facts Plaintiff also sought damages for the cost of being cared at home, including modifications to the home and a live-in carer  Institutionalisation (about $130,000) or home care including house modifications ($400,000)? o Institutionalisation awarded, plus $20,000 for excursions  “The touchstone of reasonableness … is …. cost matched against health benefits … The present … is a case of alternatives in which the difference in relative costs is great whereas the benefit to the plaintiff of the more expensive alternative is entirely [on the evidence given] one of amenity, in no way involving physical or mental well-being”

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Gratuitous attendant care services Where needs met without cost, services provided gratuitously by friends or relatives, economic damages, Griffiths v Kerkemeyer (1977) HCA awarded economic damages  Damages are assessed by reference to the market value of the services required, and not by reference to the cost to the carer Van Gervan v Fenton (1992) 175 CLR 327 o This damage recoverable even where the defendant is the care provider Kars v Kars (1996) 187 CLR 354 o The fact that services are being provided gratuitously up until the trial does not prevent an award for the future based on the commercial cost where the voluntary care may cease after trial Allianz Australia Insurance v Kerr (2012) 83 NSWLR 302  Governed by s 15 CLA (Part 2) o must be “reasonable” need for assistance o need must have arisen “solely” from injury o no damages if assistance would have been provided anyway o no damages unless assistance required for more than 6 hours a week and for more than 6 consecutive months  Where a plaintiff satisfies the six month duration requirement contained in s 15(3)(b) of the CLA he or she is entitled to recover damages for gratuitous care provided during earlier broken periods of less than six months in duration as long as services during those periods were provided for at least six hours per week Hill v Forrester (2010)  I.e. the 6 month requirement only need to be satisfied one, whereas the six hour a week requirement needs to be satisfied every week o damages subject to maximum hourly rate 1/40 AWE, and weekly maximum of 40 hours o no interest: s 18 

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Loss of parenting or domestic capacity 

Governed by s 15B o No non-economic damages (e.g. loss of amenities) for lost capacity to provide services to defined dependents (defined in s 15B) o Economic damages only available to dependents physically or mentally incapable of caring for themselves o must be “reasonable” need for assistance o need must have arisen “solely” from injury o no damages if assistance would have been provided anyway o no damages unless assistance required for more than 6 hours a week and for more than 6 consecutive months o damages subject to maximum hourly rate 1/40 AWE, and weekly maximum of 40 hours o no interest: s 18

Non-economic loss Defined in CLA s 3 as including: o physical pain and suffering (subjective) o loss of amenities of life (ability to engage in pleasurable activities, essentially subjective) o loss of expectation of life (where life expectancy shortened by injury) o disfigurement  Governed by CLA s 16 (Part 2) o statutory maximum (currently $594,000) awarded only in “a most extreme case” o court assesses plaintiff’s total non-economic loss as percentage of “a most extreme case”  if less than 15%, award is zero CLA s 16(1)  if 33% or more, that percentage of maximum awarded CLA s 16(3)  if between 15% and 32%, damages increase from 1% to 30% of maximum CLA s 16(3) o no interest: s 18  Non-economic damages may be reduced for contingencies in the appropriate case Malec v Hutton (see below) 

Other losses Damages for losses falling outside usual heads of damage will generally depend on remoteness o E.g.  costs of mitigation, e.g. travel to medical treatment  costs of retraining for new career, interest on student loan  Aggravated and exemplary damages o abolished along with exemplary damages for personal injury actions based on negligence CLA s 21 (subject to s 3B exclusions) o However, still available in a case of intentional torts 

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Contingencies (reduction on damages) Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Facts o P had degenerative spine which was likely, sooner or later, to have rendered him unemployable, which in turn, may or may not have caused a psychiatric illness. o P had contracted an industrial disease due to his employer’s negligence, which led do a permanently disabling psychiatric  Finding o Court held that although the possibility of unrelated injury (degenerative spine) may have eventuated before trial, it could not be determined as a “past fact” and should therefore be treated as a contingency affecting not only loss of earnings, but, in this case, also medical expenses and non-economic loss  i.e. for future losses, you can’t predict the future, don’t use “more probably” or “less probable”, use a 1-99% scale (this might assist in adjusting reduction for contingencies)  Principle o In NSW, general practice is to start with a 15% reduction in damages for contingencies  Then adjust % up or down according to evidence in a particular case (weigh up positives and negatives)  Award is usually reduced (i.e. more discount), because negative contingencies tend to outweigh the positives  If a short period is involved (where P close to retiring age at trial and in good health, it may be that no deduction will be made) 

Wynn v NSW Insurance Ministerial Corp (1995) 184 CLR 485 Facts o Female executive aged 30  negatives – prior back injury, intention to start family  positives – very good prospects of promotion  Finding o Trial Judge (5% reduction)  failed to reflect negatives o NSWCA (28% reduction)  based on generalisations, not on evidence  she hasn’t had kids yet, when she had kids, she might have decided to stay at home o HCA (12.5% reduction) 

Norris v Blake (No 2) Facts o Actor case, had a chance of being a superstar in Hollywood  Finding o Positive far outweighed negative, award given actually increased

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Collateral benefits   

Gifts, acts of charity or benevolence, are conferred with intention of benefitting P, not D, so not deducted, Zheng v Cai (2009) HCA First party insurance and personal pension plans not deducted, otherwise D would get benefit of premiums paid/contributions made by P Benefits similar to wages (e.g. sick, annual, long service leave) are deducted

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Damages for property torts (Tort) Introduction 

Two steps o (1) Ascertaining monetary equivalent of difference between position the P is in because of the wrong and the position P would have been in but for the wrong  Requires assessment of causation and remoteness o (2) Assess limiting devices  Mitigation  Permitting hypothetical assessment of position P would have been if he had acted reasonably  Contributory negligence  Percentage reduction of damages

Causation (concerned with type of loss)  

Common law test or causation re-stated for the torts in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 – ‘but for’ test to determine factual causation CLA s 5D(1) governing causation apply only to actions arising from negligence, where the Act otherwise applies, so the common law of causation remains applicable in other cases (legal causation + policy considerations

Remoteness (concerned with type of loss) 

Various tests of remoteness are applied in tort law o Intentional torts and defamation - Any harm actually intended by the D is never too remote Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388  ‘direct consequences test’ o Negligence and nuisance – test of reasonable foreseeability Wagon Mound (No 2), precise manner in which injury occurred need not be foreseeable Chapman v hearse (1961)

Mitigation A P who suffers a wrong causing actual or potential damage is under a duty to take all reasonable steps to prevent or minimise that damage  Failure to mitigate o if unreasonably fails to mitigate, damages are assessed on the hypothetical basis that the P had reasonably mitigated, i.e. by reference to the position P would have been if he/she had mitigated  Onus on D to prove unreasonableness Watts v Rake (1960) 108 CLR 168 o It is not unreasonable for P to not spend money he does not have Burns v MAN Automotive (Aust) P/L (1986) 161 CLR 653  Where P seeks to recover, in addition to actual cost of mitigating, the opportunity cost of doing so, this may also be considered not too remote o i.e. the interest he could earned on the out-of-pocket money he used to mitigate Hungerfords v Walker (1989) 171 CLR 125

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P may act reasonably by doing nothing Knott Investments P/L v Fulcher (2014)

Scenarios (1) Where P acts unreasonably, D not liable for any loss reasonable action would have avoided, or any loss caused by unreasonable action Henjo Investments v Collins Marrickville  (2) Where P acts reasonably, D not liable for avoided losses (even if reasonable for P to have done nothing)  (3) Where P acts reasonably, D liable for costs of mitigation and for any further losses caused by reasonable action (even if would have been avoided by doing nothing) Hoad v Scone Motors (1977) o Unless mitigation would have occurred in any event (no causation) British Westinghouse

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Reasonableness 

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In most cases, diminution in the value of damaged property will be measured by the cost of repairing or restoring it (since tortious compensatory damages are about putting P back to the pre-tort position) Reasonableness arises in cases where property is somehow unusual or unique (e.g. classic car that can only be rebuilt expensively) – since it is often cheaper to replace than repair nowadays in normal cases

O’Grady v Westminster Scaffolding Ltd (1962) 

The most expensive option of all (of restoring the car) was still reasonable, since he had sentimental attachment to the car

Evans v Balog (1976) 

Reasonable to repair family home (more expensive) rather than buy property elsewhere. It was their family home, kids grew up there, familiar neighbourhood, school

Pantalone v Alaouie (1989) Facts o Excavation of a neighbouring property caused the destruction of an investment property leased as a restaurant  Finding o Unreasonable to rebuild investment property, any property with same rental return equally good

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Betterment 

Sometimes, because building materials or techniques have improved, a P whose damaged property is repaired or replaced ends up with something superior to that which was damaged and the D argues that this “betterment” should reduce the damages payable

Scenarios (1) P would, even without wrong, have improved or replaced the property when it did, the fact that this mitigates the consequences of the wrong is coincidental o No reduction for betterment British Westinghouse  (2) P would, even without wrong, have improved or replaced the property at some later time, D’s wrong has simply accelerated the incurring of this expense and damages may be limited to acceleration o Damages would be reduced for betterment Hoad  In this case, P intended to either sell or replace the tractor in any event  This must be confirmed on the facts  (3) P would not, without the wrong, have improved or replaced the property at all o There should be no reduction for betterment Harbutt’s “Plasticine” v Wayne Tank (1970)  In this case, factory was rebuilt, there was no reduction for betterment, no plans to modernise and reduction would effectively force modernisation on P 

Other recoverable losses Consequential losses (subject to issues of remoteness)      

Cost of alternative accommodation until damage house is repaired or replaced Rentokil Pty Ltd v Channon (1990) (Where property damages based on diminution in value) - the costs of selling the damaged property and purchasing replacement property, less the value realised for the damaged property (Income-producing property) – loss of income until the property is repaired or replaced Hoad (tractor) Cost of borrowing money (interest paid or forgone) to effect repairs Jeffrey v Weeding [1986] The hire of a substitute if this is reasonable (e.g. car) Dimond v Lovell [2002] Psychiatric illness Campbelltown City Council v Mackay (1988)

Aggravated damages 

E.g. distress, vexation (annoyed/frustrated), inconvenience, disappointment and/or vindication o Rentokil Pty Ltd v Channon (1990)  Negligent pest inspection led to P to purchase a house which was so termite-infested it was only fit for demolition, $6000 awarded for vexation o Campbelltown City Council v MacKay  Their poorly constructed “dream home” fell around them. They suffered breakdowns and were awarded $40000 as damages for vexation, worry, distress and inconvenience o Farley v Skinner (2002)  Surveyor told prospective purchasers land unaffected by aircraft noise, badly affected, no diminution in value by $10,000 for discomfort

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Injunction for property torts (Tort) Introduction Upon proof by P of a threatened or intended future tort by D, injunctions are routinely granted to restrain trespass to land LJP Investments P/L v Howard Chia Investments P/L (1989) o This is because P has exclusive possession (damages usually inadequate)  Granted in the court’s equitable discretion, hence subject to equitable defences  Courts will be more likely to grant a Prohibitory injunction (prohibiting something from happening in the future) Bendal P/L v Mirvac Project P/L (1991) Rather than a mandatory injunction (requiring a house be torn down) Wrotham Park Estate Co v Parkside Homes Ltd [1974] 

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Requirements Likely to be committed, continued or repeated Damages inadequate o Usually inadequate where P should have exclusive possession  The court must consider, in their equitable discretion o (1) Alternative remedy may be superior o (2) Hardship to D o (3) Hardship to 3rd parties o (4) Acquiescence  However, note that P is entitled to injunction where injury is not small and not capable of being estimated in money or of being compensated by a small money payment, even if injunction is oppressive to defendant Shelfer v City of London Electric Lighting Co [1895]

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(2) Hardship to D LJP o Facts  A mandatory injunction was sought for the removal of scaffolding extending 1.5 metres into the airspace of the plaintiff o Finding  Injunction granted as Hodgson J believed that an injunction wouldn’t be oppressive (as the defendant had knowingly acted, and trespass was well known)  Bendal o Facts  This case involved the construction of a multi-storey building using screens to protect the work an...