Module 4 Common law damages Personal injury under the Civil Liability Act (Week 3) PDF

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Remedies lecture notes from Auturm Semester 1...

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Module 4: Common law damages: Personal injury under the Civil Liability Act (Week 3) Personal Injury - Introduction ● Building blocks ○ 1.Causation ○ 2.Scope of liability ○ 3.Assessment ■ a)Personal injury (Common law), aggravated and exemplary damages: ■ b)Personal injury (CLA), collateral benefits, possibilities, interest, tax ■ c)Property damage, trespass to land, economic torts ■ d)Breach of contract ● Personal injury (Civil Liability Act) ○ The default rules for the assessment of personal injury damages are the common law rules: they apply unless modified or repealed by legislation ○ In NSW, the Civil Liability Act 2002 (NSW) Pt 2 has changed the assessment of personal injury damages in most causes of action ○ Critical question: when does the Civil Liability Act apply? ● Civil Liability Act s 11A ○ PART 2 - Personal Injury damages ■ Section 11A- Application of Part ● 1)This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B ● 2)This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise ● 3)A court cannot award damages, or interest on damages, contrary to this Part ● Civil Liability Act s 3B - civil liability excluded from act ○ (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: ■ (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except: ● (i) section 15Band section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1)(c)), and… ● Civil Liability Act s 11 - Definitions ○ In this Part: ■ injury means personal injury and includes the following: ● (a) pre-natal injury, ● (b) impairment of a person’s physical or mental condition, ● (c) disease ■ personal injury damages means damages that relate to the death of or injury to a person ○ Moore v Scenic Tours [2020]

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Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an "impairment" of the mind or a "deterioration" or "injurious lessening or weakening" of the mind . Frustration and indignation as a reaction to a breach of contract under which the promisor undertook for reward to provide a pleasurable and relaxing holiday is, of itself, a normal, rational reaction of an unimpaired mind. (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ)

Heads of loss ○ Personal injury ■ Actual financial (economic loss) ■ Non economic loss ■ Loss of earning capacity

Personal Injury (CLA) - Economic Loss ● CSR Limited v Eddy [2005] ○ 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) ● Civil Liability Act s 15 - Gratuitous Attendant Care Services ○ 1)In this section:attendant care services means any of the following: ■ a)services of a domestic nature, ■ b)services relating to nursing, ■ c)services that aim to alleviate the consequences of an injury ○ gratuitous attendant care services means attendant care services: ■ a)that have been or are to be provided by another person to a claimant, and ■ b)for which the claimant has not paid or is not liable to pay ○ (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: ■ (a) there is (or was) a reasonable need for the services to be provided, and ■ (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and ■ (c) the services would not be (or would not have been) provided to the claimant but for the injury ○ (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): ■ (a) for at least 6 hours per week, and ■ (b) for a period of at least 6 consecutive months

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(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed: ■ (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales ... (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services Hill v Forrester [2010] ■ If the plaintiff receives GACS for at least 6h/week for at least 6 consecutive months, then the plaintiff can claim damages for that period + any other periods when GACS are/will be provided for 6h/week. ■ Still unclear whether the 6 consecutive months must be at a minimum intensity of 6h/week

Personal Injury CLA - Earning Capacity ● Although the Civil Liability Act impacts on some aspects of an assessment of earning capacity, the general approach to an assessment continues to apply: ○ >Both past and future earning capacity can be claimed ○ >Assessment involves a comparison of: ■ >What the plaintiff would have earned; and ■ >What the plaintiff is likely to earn after the injury ○ >Typically, the plaintiff’s claim will be calculated using a net weekly income multiplied across the relevant periods ○ >The plaintiff must satisfy the court that the assumptions underpinning the claim are sound ● Civil Liability Act s 12 - Damages for past or future economic loss - maximum for loss of earnings etc ○ (1) This section applies to an award of damages: ■ (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or ■ (b) for future economic loss due to the deprivation or impairment of earning capacity, or ■ (c) for the loss of expectation of financial support ○ (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award ● Civil Liability Act s 13 - Future economic loss - claimant’s prospects and adjustments ○ (1) A court cannot make an award of damages for future economic loss unless

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the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury ■ Note: Statutory form of the ‘vicissitudes of life’.Conventional to deduct 15% but that can vary depending upon the evidence (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted Amoud v Al Batat [2009] NSWCA 333 (14 October 2009) ■ It is clear that the section is not a code, but assumes the continued operation of general law principles. Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. ... Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely: ● a)the claimant’s most likely future circumstances but for the injury, and ● b)the assumptions about future earning capacity (and other events) which will form the basis of calculation The Nominal Defendant v Lane [2004] ■ I turn then to s [13]. Taking as the respondent’s most likely future circumstances employment as a nursing assistant, the award of damages for future economic loss was based on an “assumption” which accorded with that career path. Hence the $216,480. Section [13](2) then required adjustment. In its terms, s [13](2) required the $216,480 to be adjusted by reference to the percentage possibility that the future career path of employment as a nursing assistant might have occurred but for the injury. As described by McClellan AJA, there could be adjustment according to the contingency that the respondent would not have been fully employed as a nursing assistant. Having regard to Norris v Blake (No 2), in my view there could also be adjustment according to the contingency that the respondent would have been employed not as a nursing assistant but as an enrolled nurse. (Giles JA, Ipp and Tobias JJA agreeing) ■ Nothing in s [13](2) restricted the adjustment to a downward adjustment. ... In my view, the words “possibility that the events ... might have occurred” encompass percentage adjustments upwards or downwards depending on the facts. A percentage possibility that the

plaintiff’s future circumstances would have been better than those found as his most likely future circumstances calls for an upwards adjustment. If on the other hand the possibility is of worse future circumstances an adjustment downwards will be made. [66] Under s [13](2), the adjustment presently in question strictly should have been arrived at through a percentage. Why the legislature should so require, rather than leave available the no more unfathomable course taken in Norris v Blake (No 2), it is difficult to see. (Giles JA, Ipp and Tobias JJA agreeing) Personal Injury (CLA) - Non-economic loss ● Civil Liability Act s 3 - Definitions ○ non-economic loss means any one or more of the following: ■ (a)pain and suffering, ■ (b)loss of amenities of life, ■ (c) loss of expectation of life, ■ (d) disfigurement ● Civil Liability Act s 16-17 ○ Section 16 – Determination of damages for non-economic loss ■ (2) The maximum amount of damages that may be awarded for noneconomic loss is $350,000 [but see s 17], but the maximum amount is to be awarded only in a most extreme case ○ Section 17 – Indexation of maximum amount relating to non-economic loss ■ (1) The Minister is, on or before 1 October 2002 and on or before 1 October in each succeeding year, to declare, by order published on the NSW legislation website, the amount that is to apply, as from the date specified in the order, for the purposes of section 16 (2). … ■ (3) An amount declared for the time being under this section applies to the exclusion of the amount under section 16 (2) ● CIVIL LIABILITY (NON-ECONOMIC LOSS) ORDER 2010 ○ 3 Maximum amount of damages for non-economic lossIt is declared that, on and from the date specified in Column 1 of the Table to this clause, the amount that is to apply for the purposes of section 16 (2) of the Civil Liability Act 2002 is the amount specified in Column 2 of that Table opposite that specified date ● Section 16 – Determination of damages for non-economic loss ○ Note. The following are the steps required in the assessment of non-economic loss in accordance with this section: ○ Step 1: Determine the severity of the claimant’s non-economic loss as a proportion of a most extreme case. The proportion should be expressed as a percentage ○ Step 2: Confirm the maximum amount that may be awarded under this section for non-economic loss in a most extreme case. This amount is indexed each year under section 17 ○ Step 3: Use the Table to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for non-

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economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table ■ Where the proportion of a most extreme case is greater than 33%, the amount payable will be the same proportion of the maximum amount Most extreme case ○ Section 16 invites comparison with “a” most extreme case, not “the” most extreme case ○ There can be many “most extreme” cases ○ Matthews v Dean [1990] Aust Torts Report ¶81-037, 68,014 ■ ... No doubt Parliament recognised that comparisons of the extent of bodily injury must be odious hence the choice of language ‘A most extreme case’ (my emphasis) which avoids any requirement to apply the superlative by imagining the most extreme case and put that at the top of some grisly table of catastrophes. (Grove J) ○ The process invites comparison and hypothecation ○ The trial judge must: ■ >Makes findings about the plaintiff’s case; and then ■ >Evaluate whether the case could be any more extreme and by how much.Taking into account the impact of the injury on the specific plaintiff ■ Southgate v Waterford (1990) ● ‘This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by [s 16] be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case ' will doubtless vary. ...’ (Gleeson CJ, Kirby P and Meagher JA) ■ Thatcher v Charles (1961) ● ... In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. (Windeyer J) Unconscious Plaintiff ○ Manning v State of NSW [2005] ■ I am also not persuaded by the defendant’s submission that an

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assessment of non-economic loss is essentially a subjective exercise and that objective considerations should be given only minimal weight. That was certainly the situation under the common law. Under the Act, however, courts are required by s16 to follow a methodology of assessment which of necessity involves reference to a table specifying percentages and which implicitly invites a comparison with other similar injuries. In my opinion that approach injects an additional element of objectivity into the assessment of non-economic loss under the Act which was absent from the common law as considered in such cases as Skelton v Collins. (Hoeben J) ■ Taking those matters into consideration I am of the opinion that the plaintiff’s entitlement to damages for non-economic loss is much greater than that submitted on behalf of the defendant and goes well beyond a mere nominal assessment. I agree that the plaintiff’s reduced appreciation of what he has suffered and what he has lost is a factor to be properly taken into account in reducing the extent of the plaintiff’s entitlement to non-economic loss. Nevertheless, there is sufficient evidence to satisfy me that not only has the plaintiff suffered major and significant injuries in an objective sense but that he has some real appreciation, albeit not a complete appreciation, of his injuries and what he has lost. As indicated, every time he eats or seeks to ambulate he is reminded of his disabilities. I would assess the plaintiff’s entitlement to non-economic loss at 80% of a most extreme case ... . (Hoeben J) Shortened lifespan ○ Under the Civil Liability Act, “shortened life span” dealt with in procedure under s 16 ■ ie, just a factor going to the assessment of a most extreme case – not an independent head of loss Civil Liability Act Section 17A – Tariffs for damages for non-economic loss ○ 1)In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings ○ 2)For that purpose, the parties to the proceedings or their Australian legal practitioner may bring the court’s attention to awards of damages for noneconomic loss in those earlier decisions ○ 3)This section does not alter the rules for the determination of other damages

Personal Injury (CLA) - Common law/ legislation ● General rule: common law apply unless modified by legislation ● As lawyers, you must be able to identify when a claim for personal injury damages will be regulated by legislation. You must be able to: ○ >Read legislation to identify when it applies; and ○ >Know the common law principles that underpin the claim...