Assessment of damages - Summary Australian Torts Law PDF

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Assessment of Damages ...

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4.7 Assessment of Damages Reading: Stickley, Australian Torts Law, Chs 14 and 15 The principles relevant to assessment of damages for claims in negligence will be considered in detail in Law 454, Remedies. 4.7.1 Basic Principles and Terminology The five conventional heads of damage are: (i) Hospital, medical and care expenses (ii) Loss of earning capacity (iii) Loss of amenity (iv) Pain and suffering (v) Loss of expectation of life

Courts’ assessments of damages will be broken down into: •

Economic (pecuniary) versus non-economic (non-pecuniary) losses

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Past versus future losses

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Special versus general damages

4.7.2 Mitigation Beherens v Bertram Mills Circus Ltd [1957] 2 QB 1 During a circus performance a dog antagonised the leading elephant, Bullu. Consequently some elephants stampeded into a side show where some dwarfs were performing. Some of the dwarfs were injured and suffered shock. Devlin J said: "The real claim presented by Mr. Brown is for fright. An elephant coming over the top of a booth would be a terrifying thing even for an ordinary man, and although the male plaintiff asserts that he was not frightened, I am satisfied that the shock must have been considerable. I should like to award him a

substantial sum under this head, but I am satisfied that I cannot do so except to the extremely limited extent that the shock resulted in physical or mental harm." Medlin v The State Government Insurance Commission (1995) 182 CLR 1 A fifty-six year old university professor was injured in a motor accident caused by the negligence of the driver of the other vehicle. He resumed his university duties, but later took retirement four and a half years before he would have been obliged to retire. At the trial of his action for damages he gave evidence that pain and sleeplessness and associated loss of "intellectual energy" made him no longer able to discharge his teaching and research duties at a sufficiently high level to satify himself (as opposed to his employer). Held: the plaintiff was entitled to damages for loss of earning capacity, on the ground that effects of his injuries were a causative influence in the premature termination of his employment because their effect was to decrease his ability to discharge the duties of his appointment and a contributing cause of his desire to devote more time to research; hence the premature termination of his employment was the product of the diminution of his earning capacity; and on the ground that, because the act of retirement was not unreasonable and the reasons for it were the result of the plaintiff's injuries, his loss was causally related to the defendant's negligence. For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. 4.7.3 Limitation Period Limitation Act 1974 (Tas) s 5 (available at http://www.thelaw.tas.gov.au) * Wilson v Horne (1999) 8 Tas R 363 4.8 Statutory Schemes Smillie J, “The Future of Negligence” (2007) 15 Torts Law Journal 300

4.8.1 Motor Accidents Compensation Scheme Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) as amended: a copy of the Act can be downloaded from the following website: http://www.thelaw.tas.gov.au 4.8.1.1 Payment of ‘No Fault’ or ‘Scheduled Benefits’ Note exclusions under s24 of the Act. Any disputes are dealt with by the Motor Accidents Tribunal 4.8.1.2 Indemnity for common law liability See s 14 of the Act. Note the potential for the Board to recover damages paid by the Board from the negligent party in certain circumstances: s 18 of the Act 4.8.2 Workers Compensation Workers Rehabilitation and Compensation Act 1988 (Tas) (also available from http://www.thelaw.tas.gov.au ) Only available to employees as distinct from independent contractors (see definition of ‘worker’ in s 3). A connection is required between the injury or disease and the employment: s 25....