LAWS5000 - Lecture Notes PDF

Preview

Summary

Download LAWS5000 - Lecture Notes PDF

Description

LAWS5000 – REMEDIES WEEK 1 – INTRODUCTION Judicial remedies: what is a legal remedy? Breach of rights and duties (Barnett and Harder) -

Legal positivist view (Austin, Birks)  Distinction between primary & secondary rights (e.g. torts) (Austin)  Consider distinction between wrongs/not wrongs  Determined in a coherent structure of law – rules of law determine rights and remedies – consider penalties in contract  Exceptions – restitution: transfer of money by mistake o E.g. B hasn’t done anything wrong – but how can you get your money back when no right has been infringed?

REMEDIES AS A SOCIAL INSTITUTION (PROMOTE SOCIAL ORDER)     

Focus on the social outcomes/functions of remedies 1. Compensate for loss 2. Specific performance (injunctions) as an alternative to compensation to suit the circumstances of the case 3. Restitution -merges notions of primary and secondary rights- make good unjust enrichment 4. Punishment -deters wrongdoer to create socially desireable conduct in the future

Different approaches challenge compensation as primary remedy

MONIST V DUALIST APPROACH  

Monist view- correlation between right and remedy Dualist view – right and remdy separate – remdy most appropriate to the case o Rise of the dualist approach as a result of statute



Outstanding issues o How to rationalise choice of remedy

o

Influence of economic theory of law: the impact this has had on maintaining legal relationships- ie. Moral values v economic efficiency Balancing moral values

o o

Hardship to third parties Conduct of the parties

o o

Calculating loss Enforcement

o

THE FUSION FALLACY (MONIST V DUALIST)    

The relationship between equity and common law Breaches of equitable duties = equitable compensation (lecture 8) CL- a remedy in equity available when damages are inadequate (specific performance + injn) (Lecture 6) But can CL damages be awarded for breaches of equitable duties

THE FUSION FALLACY 

CL damages for breaches of equitable rights not available: Harris v Digtial Pulse Spigelman CJ & Heydon J o 1. History esp in NSW- the two streams don’t mingle their waters o 2. Legal rationale- exemp damages inbuilt in an award of equitable comp



Cf Mason P (Dissent)

WEEK 2 – TORT LAW REMEDIES GENERAL PRINCIPLES Judicial Remedies -

Compensation Payment

Remedies- the key to the common law system?  

Remedies can serve as structure (backbone) for common law 4 major ways to classify legal claims: o Rights based-claims organised around PI’s rights/interests e.g. property, land/chattels/IP etc. – rights based classification o Duty based – organised around Def duties e.g. separation within law of obligations between o o

contract, tort restitution Source-based -separate by origin e.g. statute or common law Remedies-based- organise legal claims around type of legal remedy or procedure available ie work backwards from presence of remedy to determine right

STRUCTURE OF CONTRACT AND TORT- CLASSIFYING COMMON LAW Tort 

Can be organised/structured based on: o Type of wrong e.g. intentional, negligence, strict liability o



Rights protected e.g. property, reputation, bodily integrity

o Remedies-compensatory damages, other damages, equitable remedies But see: “tort is what is in the tort books, and the only think holding it together is the binding”

Tort      

Negligence seems to represent a late-flowering of duty-based classification.. threatens to swallow up the whole of tort’ Re negligence- ;whether the sprawling liability that has resulted constitutes a crisis or merely a mess may be a matter of opinion’ Left overs from tort/contract formed into new law of resttituion-duty based ie duty to restore unjust benefits/enrichment Modern academic debates considered Relevance of politics Note discussion personal injury/tort reform

Re Personal injury (negligence) – options: 1. 2. 3. 

Rights-based- replace P.I claims with diff claims e.g. NZ no-fault Accidents Compensation Scheme Duty-based-restrict liability by modifying substantive law- CLA & tort reform Remedies based- restrict damages- CLA caps/thresholds, major restrictions on Griffiths v Kirkmeyer damages etc Conclusion-makes sense to organise common law by remedies, but not only method

GENERAL PRINCIPLE OF DAMAGES IN TORT 

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 o “Where an injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” (Lord Blackburn)

GENERAL PRINCIPLES OF DAMAGES IN CONTRACT 

Robinson v Harmon (1848) 154 ER 363, 365 o “The rule of the common law is that where a party sustains a loss by reason of a breach of

o

contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed” (Parke B) As if the contract had been performed

BASIC PRINCIPLES IN COMPENSATORY DAMAGES Damages: Definition McGreogor on Damages “pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum which is awarded unconditionally and is generally but not necessarily expressed in (the local) currency” 1.

A) Compensation-main purpose, but..

RESTITUTIO IN INTEGRUM       

Restitutio in integrum Rule operates differently in contract and tort Contract: expectation damages ie. Expected profit under the contract: Amman Aviation Look forward for contracts-completed contract bargain) Look backward for tort – pre-tort position Not necessarily either measure applicable for statutory damages e.g. Competition and Consumer Act 2010 (Cth) Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 o “Where an injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” (Lord Blackburn)

QUALIFICATIONS TO COMPENSATORY PRINCIPLE Rules 1. 2. 3. 4.

Causation Certainty of loss – see Malec v Hutton Contributory negligence -Astley v Austrust -amended LR (Mp) Act 1965, new, ss 8,9 – apportionment in tort; in contract only where concurrent liability Duty to mitigate

CAUSATION AT COMMON LAW 



For any claim for damages the Plaintiff must o Prove loss/damage o The defendant’s wrong was cause of the plaintiff’s loss

o Amaca -P/L v Ellis (2010) 240 CLR 111 o French CJ, Gummow, Hayne, Heydon, Crennan, Keiffel, Bell JJ o Facts:  Mr Cotton died of lung cancer-work exposure to asbestos & long term smoker- PI executor-negligence PI won at trial and C/A (WA) -duty/breach not in issue o Issue Causation-whether PI had established that more probable than not that exposure to respirable asbestos was a cause of C’s cancer ie asbestos caused or contributed to (necessary condition) Medical/scientific exam cannot say whether deceased’s lung cancer caused by tobacco smoke, asbestos fibres, both, neither All experts agreed risk from smoking v much higher than from asbestos 

o o 

o Not able to get over the causation element The test of “But For” used in both contract and tort o Ie. But for the defendant’s wrong would the plaintiff have suffered the loss? o

If the answer is yes then causation is NOT proven because the loss would have occurred anyway o If the answer is no then causation is prima facie proven Barnett v Chelsea and Kensington Hospital (1969) 1 QB 428 o Barnett attended the Hospital complaining of stomach pain. Barnett was sent away by the hospital to recover at home. The patient died of arsenic poisoning o



Would the plaintiff have suffered the loss irrespective of the defendant’s wrong

o

Held:

That the patient would have died anyway as even if the patient had received competent treatment he would have died as the arsenic poisoning contracted from drinking a cup of tea with arsenic in it was not reversible by any treatment March v E & MH Stramare (1991) 171 CLR 506 o The mere fact that something constitutes an essential condition (in the “but for” sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a “cause” of that occurrence as a matter of either ordinary language or common sense. The common law tradition is that what was the cause of a particular occurrence is a question of fact which “must be determined by applying common sense to the facts of each particular case” (Mason CJ) ‘For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that as a matter of ordinary common sense and experience, it should be regarded as a cause of it’ (Deane J) 









Causation in fact: Multiple causes o Applying the common sense rule o

Stapley v Gypsum Mines Ltd [1953] AC 663 681  “The question of what caused an accident from the point of view of legal liability must be determined by applying common sense to the facts of each case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened. But that does not mean that the accident must be regarded as having been caused by all of them. One must discriminate between those faults which must be discarded as too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause. But in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. (Lord Reid)

CERTAINTY AND PROOF OF LOSS 

Malex v JC Hutton Pty Ltd (1990) 169 CLR 638 (SVW p 568) o Facts: PI worked in abbotoir-e/er negligence-PI Brucellosis-brucellosis caused depressionbut also unrelated degenerative back  C/A held back condition likely to lead to depression even if no brucellosis-no damages for depression Dean, Gaudron, McHugh JJ 

o

Must distinguish between events that would have/might have occurred, and those which have occurred ie. Distinguish between existing & past facts and future or hypothetical events C/L court determines on balance of probability whether event has occurred-treated as certain (present/past fact) if meets balance of probability standard, otherwise not proved Ie. 51% proof =100% damages 49% proof = no damages- all or nothing approach re past events Crucial to distinguish between issues of causation of loss/onus of proof, & certainty/loss of chance If unable to prove causation-no damages 

    

 

If prove on balance of probability = 100% damages But if question of chance (future hypothetical), then 51% probability – 51% damages

Limitation of Evidence   

The plaintiff myst prove that it was more probable than not that the defendant’s wrong was a cause of the plaintiff’s loss Sometimes the state of knowledge/science at the time of the trial cannot determine whether the defendant’s wrong was the probable cause of the plaintiff’s loss The common law can make a policy decision to find causation despite the limitations of the evidence

Two recognised categories 1. 2.

The plaintiff’s loss is caused by an accumulation of factors and it is impossible to determine the extents of the role the defendant’s wrong played; The defendant’s conduct materially increased the risk of harm

Accumulation of Losses 

Bonnintong Casting v Wardlaw [1956] AC 613 o Facts:  Plaintiff contracted pneumoconiosis from exposure to silicia dust. The dust came from two sources.  It was not possible to establish the extent to which-if at all the F negligence caused the disease o Held:  Defendant liable for ALL the harm – thought it was not possible to apportion the harm between the different sources of exposure  The court asked was there a material increase in risk through exposure caused by D’s negligence

Causation: Civil Liability Act 5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

5D General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability). (--- remoteness)

SCOPE OF LIABILITY  

Should the defendant he held liable for the damages even when the defendant caused the P’s loss? Ie. Should the defendant be held liable when: o The P’s loss would have occurred anyway due to another sufficient cause o o o

The loss caused was extraordinary or unforeseeable The P party caused the loss by their own negligence or failure to act reasonably when the loss occurred? The loss was partly caused by other wrongdoers

SCOPE OF LIABILITY: COMMON LAW     

Apply the common sense rule The loss caused was extraordinary and unforeseeable (too remote) Loss was partly caused by P’s own negligence (Contributory negligence) Or the P failed to take precautions to avoid harm or loss (mitigation) The loss was partly caused by other wrongdoers (proportionate liability)

NOVUS ACTUS INTERVENIENS (DEFENCE)   





When there is a supervening event which overwhelms the D’s wrongdoing such that the court holds the intervening act is the REAL cause of the P’s loss, the D is exonerated The novus actus breaks the chain of causation between the D’s wrongdoing and the P’s loss The novus actus must be: o 1. Unforeseen/extraordinary coincidence; OR o 2. Where the plaintiff or their party acts unreasonably but voluntarily March v E & MH Stramare (1991) 171 CLR 506 o “As a matter of both logic and common sense, it makes no sense to regard the negligence of the P or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the D negligence satisfies the “but for” test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to regard it” (Mason CJ) If multiple causes have caused the plaintiffs loss, then the other causes may: o Reduce/eliminate o Increase o Have no effect On the defendants liability Each case turns on tis own facts.

NOVUS ACTUS INTERVENIENS -CLA (IF THE CIVIL LIABILITY ACT APPLIES) 5D General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

WEEK 2 (CONTINUED) – TORT REMEDIES – COMMON LAW HEADS OF LOSS 

Economic loss



Damages or non-economic loss in personal injury



Compensation for loss of earning capacity

ONCE AND FOR ALL RULE 



NB Murphy J Todorovic v Waller: o

Law on damages for PI systematically under-compensates catastrophically injured- avoids placing full costs of accidents on Defs

o

Absurd to assume injured PIs always able to manage/invest large lump sums competently

o

Date of calculating payments in the date of the trial and divided into past losses and future losses

At the time of trial a calculation is made for all loses to the date of trial and all future loses.

o  Past losses from date of injury to trial. o  Future loses from date of trial to another date. Ie date of death, date of retirement etc. ECONOMIC LOSS  



CSR Limited v Eddy (2005) 226 CLR 1 [31] … actual financial loss, for example, ambulance charges; charges for medical, hospital and professional nursing services; travel and accommodation expenses incurred in obtaining those services; the costs of rehabilitation needs, special clothing and special equipment; the costs of modifying houses; the costs of funds management; and the costs of professionally supplied home maintenance services. It is not necessary for the costs actually to have been incurred by the time of the trial, but it is necessary that they will be incurred. (Gleeson CJ, Gummow and Heydon JJ) Claims for actual, identified, specific financial loss = special damages



Claims for future, potential losses = general damages

GRIFFITHS V KERKEMEYER DAMAGES 

Griffiths v Kerkemeyer (1977) 139 CLR 161 o Plaintiff made quadriplegic by the defendant’s negligence. o Family provided gratuitous care. o Plaintiff sued for compensation for the need for care caused by the negligence. o “… the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them, is no longer acceptable. That view proceeded upon the footing that the relevant loss was the legal liability to pay for the service. It is now recognized that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration.” (Mason J) o ‘Although there has been a suggestion in some of the cases, notably Allen v Waters & Co, Schneider v Eisovitch and Cunningham v Harrison, that a plaintiff should hold that part of the damages awarded as is referable to services provided gratuitously in trust for the person providing the services, it is a suggestion which is unacceptable. There is no foundation for the erection of a trust. The theory on which the plaintiff is permitted to recover is that the damages are awarded as compensation for his loss, whether he is under a legal liability or other obligation to pay for the services or not.’ (Mason J) Van Gervan v Fenton (1992) 175 CLR 327  “Once it is recognised that it is the need for the services which gives the plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to the plaintiff of having them provided or by reference to the income foregone by the provider of the services. As Stephen J pointed out in Griffiths … the principle … “is concerned not with what outlays of money the plaintiff will in fact incu...