Damage PDF

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DAMAGE 1. is the loss suffered by the plaintiff the kind of damage recognised by the law 2. even where it is established that a duty of care exists and the duty has been breached, there can be NO LIABILITY in negligence unless some DAMAGE has been suffered by the plaintiff 3. different from other torts such as trespass or assault. Whether is no need for demonstration of ACTUAL HARM suffered CASE REFERENCES ‘ there must be a temporal loss or damage.. In order to entitle a party to maintain an action’ Williams v Morland (1824) 2 B7C 910 ‘ damage is an essential ingredient in an action for negligence’ Schwebel v Telekas [1967] 1 OR 541 ‘ where a claim for personal injuries is made, proof of damage would be required to complete the cause of action’ Williams v milotin (1957) 97 clr 465 TYPES OF RECOGNISABLE DAMAGE     

PROPERTY DAMAGE PERSONAL INJURY PHYSICAL AND PHYSCIATRIC ECONOMIC LOSS CONSEUQUENTIAL AND PURE ECONOMIC LOSS

Damages may consist of several items -

Pain and suffering Loss of income/loss of chance medical expenses Voluntary services Loss of consortium SET OUT IN PART 8 OF CIVIL LIABILLITY ACT 1936 (SA)

DAMAGE MUST BE LEGALLY COGNISABLE – Only particular types of damage are recognised and can be sought in claim for negligence.

Damages that are not legally cognisable (unable to claim in negligence) 1. Loss associated with illegal activities – where damage consists of the termination of benefits flowing from criminal or fraudalaent activities CASE TO REFER TO: MEADOWS V FERGUSON (1961) VR 594. FACTS, Plaintiff claimed damages for personal injury including lost wages. - At the relevant time, the Plaintiff was a clerk to a bookmaker (this was then an illegal activity). - The Defendant argued that to permit recovery would endorse the illegal activity. ‘…the plaintiff, had he not been injured, would have continued in his employment by [the bookmaker], and that the earnings of which the plaintiff was deprived during his 12 weeks’ incapacity were those which he would have received for aiding and abetting [the bookmaker] in his business, which was plainly unlawful. I am, therefore, of the opinion that the plaintiff’s award of special damages should include no sum in respect of loss of wages.’

2. Loss unable to be quantify – where a claim for damage is too vague to be capable of recognition Roberts V roberts (1864) 5 b & S 384, the court held that ‘expulsion from a social club’ was not a damage that could be quantified

3. Insufficient, such as: grief/stress, no harm, loss of chance of harm not occurring – the law does not recognise general anxiety or vexation. Does not recoginse emotional disturbance that does not manifest into some recognised psychiatric injury Grief and sorrow are among the "ordinary and inevitable incidents of life” … Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial.’ Tame v NSW (2002) 211 CLR 317

Quantifiable loss – WRONGFUL BIRTH - Veivers v Connolly [1995] Qd R 326 FACTS -

Dr negligently failed to adivse plaintiff that child had contracted rubella in 1st trimester Child born severely disabled – profoundly deaf, almost blind, extremely retarded, physical disability Had she been aware, she would have terminated her pregnancy

HELD -

court awarded damages for the additional costs of raising a disabled child, over and above those raising a healthy child. 860,738,000

quantifable loss – WRONGFUL CONCEPTION - Cattanach v Melchoir (2003) 215 CLR 1 FACTS -

dr performed tubal litigation ( meant to be comprehensive contraceptive procedure procedure performed negligently platinff fell preganant healthy child but unwanted

HELD -

the High court found in favour of the mother allowing her to claim costs of raising the child. Court could quantify costs associated with raising a child...