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Remedies Final Exam Question 1 Tom v Gina Cause of action Negligence causing personal injury. Compensation Principle: The purpose of compensation to Tom is to place Tom in the position he would have occupied had the accident not occurred. Where an injury is to be compensated by damages, the sum of damages should represent, as far as they can, the position of the plaintiff had he/she not sustained the wrong (Livingstone v Rawyards Coal Co). These damages are like to be received as a lump sum once and for all (Murphy v StoneWallwork). The damages awarded are mostly unconditional (Todorivic v Walker). Personal injury claims are assessed with reference to the date of trial (Baker v Willoughby). Therefore, the date of assessment in this case will be 19 January 2020. Assessment of damages I.

Economic Loss a) Out of pocket expenses

Past: Tom has had to undergo three surgeries to attend to his fractured spine and has already incurred $162,000 in expenses. Causation and remoteness principles need to be applied to assess these expenses. The CLA s 5D(1)(a) sets out what is required to prove causation. In order to ascertain factual causation, we apply the ‘but for test’ found in Strong v Woolworths Ltd. Tom would not have had to undergo the surgeries but for the accident cause by Gina. As per CLA s 5D(1)(b) we must consider remoteness. According to the Wagon Mound principle, it must be established that the damage caused was reasonably foreseeable. Gina rode her electric scooter on the footpath which was not permitted and met with an accident

with Tom, for which she accepted liability. An accident would have been reasonably foreseeable as Gina was riding in a prohibited area. Remoteness is therefore established. Future: There is prospect of ongoing surgery every five years until death. He will require intensive physiotherapy over the next year in order to walk again. The aforementioned causation and remoteness principles would apply to these circumstances. Additionally, it is likely he will need modifications including a $5000 ram for his home in the future, when his condition has deteriorated. Tom would not have suffered a spinal injury but for the accident, and as a result would not have required the future modifications. Remoteness is slightly more controversial; would the modifications have been a foreseeable consequence of the accident? The extent of damage is not significant, it is the nature of the damage that matters (Hughes v Lord Advocate). Therefore, it is not required that Gina would have foreseen the future need for home modifications. Foreseeability of the accident itself is sufficient. b) Loss of earning capacity Tom’s earning capacity has been diminished due to the injuries and has and will cause him financial loss. Therefore, a claim can be made for that loss ( Husher v Husher). CLA s12 applies to these damages. Past: He was earning $250,000 per annum after tax (approx. $4,800 per week) as an orchestra conductor. Additional to this, he had been earning $200 net per week for modelling – adding up to approx. $5000 net per week. As a consequence of his injuries, he missed 9 months of work. The maximum amount he can claim is capped at 3 times his average weekly earnings, pursuant to CLA s12(2). Future:

For future economic loss, the onus is on Tom to satisfy the court of his ‘most likely’ future economic circumstances – CLA 13(1). Prior to the accident he was an orchestra conductor, it is most likely that he would have maintained this position had the accident not occurred. Furthermore, it is likely he would have pursued modelling on the side which he can no longer do due to his injuries. Tom’s future economic prospects are now extremely limited. He can return to work and earn $150 per week for a desk job. Therefore, Tom will likely be compensated for the difference between his most likely circumstances in absence of the accident and his future economic prospects. Superannuation: superannuation is awarded in addition to damages for past and future loss of economic capacity as per CLA s15C(1), where the relevant percentage is mostly 11% (s15C(2)). c) Gratuitous care Future: Tom requires 8 hours of care each week for the next 12 months, and 5 hours per week for three years following that. Gratuitous care provided by family/ friends can be claimed for financial loss (Griffiths v Kirkemeyer). Section 15 of the CLA sets out what is required to satisfy the need for damages for gratuitous care. There is a reasonable need for care (s15(2) (a)), arising solely as a result of Tom’s injury (s15(2)(b)), which he would not have required but for the injury (s15(2)(c)). Section 15(3) provides the required thresholds. Tom requires care for more than 6 hours ((s15(3)(a)) and for more than 6 months (s15(3)(b)). Therefore, damages for this care will be compensated. However, the 5 hours per week care does not meet the threshold requirements and therefore will not be compensated. d) Applicable Deductions/ Additions

For the future economic costs mentioned above, the court will need to adjust the amount of damages based on the percentage possibility that the events would have occurred either way (CLA s13(2)). The percentage of 15% is normally adopted for this deduction. Furthermore, a present value discount of 5% will likely be applied to offset possible benefits of receiving a lump sum now (e.g. investing) (CLA s14(2)(b)). Interest on past economic damages will be added as Tom is unable to earn interest on the lost income and moneys until damages have been assessed (CLA s18(2)). II.

Non-economic loss

The severity of Tom’s non-economic loss needs to be assessed as a percentage in proportion to a ‘most extreme case’ (CLA s16). Where severity is less than 15%, no damages are awarded (CLA s16(1)). Tom is humiliated by his injuries, in constant pain and has significant scaring from the operations. The maximum award for non-economic loss is $350,000, awarded for most extreme cases only ( CLA s16(2)). Where the severity is greater than 15%, s 16(3) provides a table used to determine the amount for an award. For example, if the severity is assessed to be 15%, then 1% of $350,000 will be awarded. Tom’s compensation for non-economic loss depends on the court’s determination of Tom’s case as a proportion of a most extreme case.

Question 2 1) Equitable Remedy Kramer can seek a rectification of the contract regarding the purchase price. This remedy will allow Kramer to amend the contract to reflect his true intentions (Maralinga v Major Enterprises). It is unconscionable for a contract to be pursued with disregard to a party’s original intention at the time of creation (Franklins v Metcash). It is preferable he apply for a rectification over rescission as rescission renders contracts void ab initio. Whereas rectification allows the contract to remain on foot.

The elements required to pursue the remedy of rectification are; the existence of a written contract and proof that the contract does not reflect the true intentions of one or both parties. A written contract prepared by Kramer’s solicitor Elaine does exist. However, Kramer had mistakenly indicated the purchase price amount of $800,000 rather than $900,000. This is a factual mistake regarding the contractual terms (Commissioner of Stamp Duties v Carlenka). Therefore, Kramer can seek a rectification of the contract adjusting the purchase price in order to reflect his true intentions.

2) Specific Performance An order of specific performance is a remedy where the party in breach of a contract is ordered to specifically perform the contract to its end (Williamson v Lukey). It is ordered in circumstances where there is a refusal to perform a contract or a threat to do so (Wolseley Investments v Gillespie). The prerequisites for this order require that there exists an agreement to which there is a breach or a threatened breach and that common law damages are an inadequate remedy. There must be no discretionary defence or disentitling conduct. Jurisdictional factors There is exists an enforceable contract between Jerry and Kramer for which valuable consideration of $45,000 has been payed as a deposit. There has been a breach of contract by Kramer as he now demands more than the originally decided amount of $900,000. It must be shown that common law damages are inadequate to remedy the plaintiff’s situation for there to be jurisdiction (Beswick v Beswick). Common law damages are considered inadequate where the subject matter of the dispute is land, as all land is unique (Dougan v Ley). Damages are inadequate for sale of land contracts as substitutes cannot be readily found (McIntosh v Dalwood). Jerry is seeking specific performance regarding a contract for sale of land in Albury. Therefore, the court does have jurisdiction to order specific performance as common law damages are rendered inadequate for this contract.

Discretionary factors There are no discretionary defences available to Kramer and there has been no disentitling conduct. Therefore, Jerry can seek an order of specific performance of the agreement by Kramer.

3) Breach of contract The purpose of compensation in contracts is to place Jerry in the same position he would have occupied had the contract been performed (Robinson v Harman). The date of assessment of compensation is usually the date of breach. As mentioned above, a breach has been established whereby Kramer demands an amount greater than that of $900,000 which is the original purchase price amount stipulated by the contract. Causation Factual causation is uncontroversial in this case. Assessment of damages I.

Past economic loss

Jerry has payed a deposit of $45,000 to Kramer as part of the contract. This is a direct loss arising from a breach of the contract. As per the first limb of the Hadley v Baxendale test, this loss arises naturally from the breach. Therefore, Jerry can claim this deposit. II.

Loss of chance or opportunity

For damages to be awarded under loss of chance or opportunity, the plaintiff must establish that on the balance of probabilities the plaintiff lost a chance or opportunity as a consequence of the defendant’s breach (Sellars v Adelaide Petroleum). Jerry has contracted to sell the land for $1.3 million. This contract will settle the day after the contract between Jerry and Kramer settles. However, as there is a breach of the prior contract between Jerry and Kramer, the new contract will not settle and therefore Jerry will lose this opportunity.

In order to assess remoteness for this loss, we turn to the second limb established in Hadley v Baxendale. This requires an assessment of whether loss could have been reasonably contemplated by both parties. In order to satisfy this limb, the plaintiff must establish that the defendant knew or ought to have known about the relevant circumstances. It is unclear on the facts whether Kramer has knowledge of the new contract. If Jerry can prove that he does in fact have knowledge the second limb will be satisfied. In order to assess the damages occurring from this loss of opportunity, the court will need to consider the probability of the event occurring (Chaplin v Hicks). The award for damages would be discounted by the percentage possibility of the event not occuring. If the contract between Kramer and Jerry went through, the probability of the new contract not settling is highly unlikely as the contract has already been signed. Therefore, it is likely that the court will discount the amount of $1.3 only by a small percentage.

Question 3 How ADR undermines the Westminster System of stare decisis

The Westminster System of stare decisis is the principle whereby matters in litigation are resolved based on precedent. Stare decisis translates to stand by what is decided. Precedent establishes rules and principles that can be applied or used by courts deciding on subsequent cases with similar issues in contention. Precedent and statute play significant roles in litigation. Precedent provides clarity, consistency and predictability in law.

Alternative dispute resolution is a resolution process which is provided as an alternate to litigation and departs from judicial determination. These processes are put in place to resolve disputes between parties through mechanisms other than the judicial system. It is suggested that there are many benefits attached to this approach; such as avoiding lengthy litigation,

lowering costs, speedy resolutions, the preservation of relationships and so on. One of the promises these processes offer is the promise of confidentiality. Results and decisions regarding disputes handled through ADR are not recorded. Where most civil courts are open to the public, ADR can be conducted behind closed doors.

These closed doors are an unwelcome obstacle to public accountability. For example; it may be the case that the dispute in question concerns exploitation or unfair agreements made by large corporations. ADR provides a veil to such cases under the cover of confidentiality. As a consequence, common law on such matters is restricted from evolving. ADR hinders the development of precedent in disputes which may be of legal significance. Some disputes may reveal systematic problems and where such disputes are handled by ADR it is impossible for precedent to be set. Therefore, ADR does undermine the Westminster System of stare decisis to an extent and the above analysis makes it evident how....