Remedies Exam Notes/Scaffold PDF

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Final Exam Notes and Scaffold...

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REMEDIES CONTRACT

Table of Contents TORT

3

CAUSATION Exception - novus actus interviens

3 3

REMOTENESS

4

ANCILLARY ISSUES

4

Mitigation

4

Contributory Negligence

4

Intoxication:

5

Apportionment:

5

MULTIPLE TORTFEASORS

5

ASSESSMENT OF DAMAGES: TORT PERSONAL INJURY

7 7

Economic Loss

7

Non-Economic Loss

8

Loss of Past/Future Earning Capacity

9

PURE MENTAL HARM

10

Option One: Pt 3 CLA ‘Mental Harm’

10

Option Two: Part 2 CLA ‘Personal Injury’

11

AGGRAVATED/EXEMPLARY DAMAGES

11

PROPERTY DAMAGE

11

REASONABLE USE FEE

13

PURE ECONOMIC LOSS: NEGLIGENT MISSTATEMENT/FRAUDULENT MISSTATEMENT

13

ANCILLARY ISSUES: DECREASE AN AWARD OF DAMAGES

14

Mitigation/betterment

14

Negative contingencies

14

Collateral benefits

14

INTEREST

15

16

CAUSE OF ACTION

16

CAUSATION

16

Exception - novus actus interviens

17

REMOTENESS

17

ANCILLARY ISSUES

17

Mitigation

17

Contributory Negligence

18

Multiple Tortfeasors

18

ASSESSMENT OF DAMAGES: CONTRACT PERSONAL INJURY

20 20

Economic Loss

20

Earning Capacity

21

Non-Economic Loss

22

PURE MENTAL HARM

23

Option One: Pt 3 CLA ‘Mental Harm’

23

Option Two: Part 2 CLA ‘Personal Injury’

24

PROPERTY DAMAGE

24

EXPECTATION DAMAGES

25

Sale of goods

25

Sale of Land

26

Loss of Profit

26

RELIANCE DAMAGES/WASTED EXPENDITURE

26

LOSS OF CHANCE

27

ANCILLARY ISSUES

27

Mitigation/betterment

27

Negative contingencies

27

Collateral benefits

27

INTEREST

28

1

REMEDIES EQUITABLE REMEDIES

29

Illegality

37

29

Waiver of tort

37

Exception

29

QUANTUM MERUIT

37

Unconscientious Conduct

30

CHANGE OF POSITION

39

INJUNCTION

30

GOOD CONSIDERATION

39

RECTIFICATION (CONTRACT)

31

Common mistake

31

IN TRADE OR COMMERCE

40

Unilateral mistake

31

MISLEADING OR DECEPTIVE CONDUCT

40

SPECIFIC PERFORMANCE

ACL S18 MISLEADING/DECEPTIVE CONDUCT

40

RECISSION (CONTRACT)

31

Classes of Persons

40

SPECIFIC RESTITUTION (INTENTIONAL TORT)

32

Identified individual

41

DEFENCES

32

DISCRETIONARY FACTORS

33

Causation

42

RESTITUTION (CONTRACT)

36

Measure Of Loss

43

MONEY HAD AND RECEIVED

36

Apportionment/Contributory Negligence/Liability of

Total failure of consideration

36

Persons Involved

44

Money paid under mistake

36

Ancillary Issues

45

DAMAGES

42

2

REMEDIES

TORT As the harm to [Plaintiff] resulted from [Defendant]’s negligent conduct, the Civil Liability Act 2002 (NSW) ‘the Act’ will apply (s 5A). However, for [Plaintiff] to establish a claim of action against the offending party/parties, it will be necessary to first establish that the heads of loss are caused by the negligence of [Defendant] and that they are within the scope (s 5D(1)). Note: Intentional Conduct covered by CL principles (trespass to land, trespass to goods, conversion, detinue)

Causation à was the overall loss a product of Defendant’s liability? GENERAL: To establish factual causation under s5D(1)(a) CLA, [Plaintiff] must show that the actions of [Defendant] were a necessary condition of the harm. On the facts, it is likely that ‘but for’ [the negligent conduct], [Plaintiff] would not have [the harm] (Strong v Woolworths). COMPLEX CASE: As this is a complex case where multiple factors having caused the loss, it is sufficient for [Plaintiff] to prove that [Defendant]’s conduct was a material cause of the loss (March v Stramare). This will require consideration of why responsibility for the harm should be imposed on [Defendant] (s5D(2) CLA). Exception - novus actus interviens The establishment of a novus actus interviens may be argued by [Defendant] (s 5D(1)(b) CLA), however it is a high threshold to meet. If the harm was caused by the actions of [Plaintiff], then they must be ‘unreasonable’ (M’Kew v Holland). Negligent medical treatment will not limited the liability of [Defendant] (Mahoney v J Kruschiech). Does not apply where the harm was the result of the very risk that [Defendant]’s negligence created (March v Stramare).

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REMEDIES

Remoteness à address specific heads of damage individually In addition to establishing factual causation under s 5D(1) CLA, [Plaintiff] must show that it is appropriate for the liability of [Defendant] to extend to the harm caused (s5D(1)(b) CLA). It will be within scope where the harm caused was reasonably foreseeable as a consequence of [Defendant]’s actions (Wagon Mound) and the damage suffered was not ‘far-fetched or fanciful’ (Wyong Shire Council). [APPLY FACTS] Only the kind of damage and general manner in which it occurred needs to be foreseeable (Alexander v Cambridge Credit Corporation). [Exception: Egg-shell skull theory (Smith v Leech Brain)] o INTENTIONAL TORTS: the test of foreseeability is whether the relevant harm was intended or was the natural and probable consequence of the defendant’s act (Palmer-Bruyn and Parker Pty Ltd v Parsons) o NUISANCE: reasonable foreseeability (Wagon Mound)

Ancillary Issues Mitigation [Defendant] may raise issues of mitigation. [APPLY FACTS] In this case, it is [likely/unlikely] that [Plaintiff] would be found to have acted reasonably in ensuring the losses did not increase (Glavonjic v Foster), thus, [Defendant] will still be held liable (even if losses have increased after damage was suffered) (British Westinghouse). Contributory Negligence [Defendant] may raise issues of contributory negligence. In assessing whether [Plaintiff] has contributed to their own harm, the court must consider whether they have breached the standard of care. The standard of

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REMEDIES care attributed to [Plaintiff] if that of a reasonable person in their position, based on what they knew/ought to have known at the time (Boral Bricks v Cosmidis). In this case, it is [likely/unlikely] that [Plaintiff] would be held to be contributorily negligence as [APPLY FACTS]. Where [Plaintiff] has been contributorily negligent, the court will adjust damages recoverable by the plaintiff as it thinks just and equitable with regard to their share of responsibility (Law Reform (Misc. Provisions) Act 1965 S 9(1)). Intoxication: Damages are not awarded where the harm was not likely to have occurred if the plaintiff had not been intoxicated (s 50(2) CLA). If the court is satisfied that the harm was likely to have occurred even if the plaintiff had not been intoxicated, then contributory negligence is presumed (s 50(3) CLA). Damages are to be reduced on account of contributory negligence by 25% or greater as appropriate (s 50(4) CLA). Apportionment: When apportioning liability, the whole conduct of the parties must be comparatively examined (Podrebersek v Australian Iron and Steel).

Multiple Tortfeasors The liability of a concurrent wrongdoer, where not excluded under s 34A, is limited to an amount reflecting a proportion of the damage/loss that the court considers just having regard to the extent of the defendant’s responsibility (s 35(1)). Pt 4 CLA will not limit liability of a concurrent wrongdoer who intended to cause the loss (s 34A(1)(a)) or fraudulently caused the loss (s 34A(1)(b)). o Pt 4 CLA applies to a claim for economic loss or property damage arising from a failure to take reasonable care (s 34(1)).

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REMEDIES o Pt 4 CLA does not apply to a personal injury claim or any intentional tort claims (s 34(1)). This proportionate liability regime requires the plaintiff to sue all of the wrongdoers to recover the total loss (Hunt & Hunt Lawyers v Mitchell Morgan Nominees).

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ASSESSMENT OF DAMAGES: TORT As the cause of action is in tort, where the heads of loss are established, the objective is to place the injured party in the same position as if they had not sustained the wrong (Livingstone). à Must identify what the claim is made for:

Personal Injury As [Plaintiff] is making a claim for personal injury it will be governed by Pt 2 of the CLA (s 11A CLA). There are three heads of loss claimable in relation to [Plaintiff]’s injury. Economic Loss Out of pocket expenses [Plaintiff] will be able to claim for actual financial loss that has been or will be incurred due to the injury (CSR Ltd v Eddy), as long as they are based on [Plaintiff]’s reasonable needs (Sharman v Evans). [APPLY FACTS] o This will include charges for ambulance, hospital, medical and professional nursing services, rehabilitation, special equipment/housing modifications (CSR v Eddy). Where there are hospital costs, is assumed Medicare covered this and thus [Plaintiff] will be liable to pay back this amount (Health and Other Services (Compensation) Act 1995 (Cth) s 8) where it exceeds $5,000 (Health and other Services (Compensation) Act 1995 (Cth) s7(3)); (CSR v Eddy). [APPLY FACTS/CALCULATE] Future expenditure [Plaintiff] may claim for quantifiable future economic losses arising out of the injury. However, the present value of these damages will be assessed at a 5% discounted rate (s 14(1)-(2) CLA). [APPLY FACTS/CALCULATE]

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REMEDIES Gratuitous care services [Plaintiff] will be able to claim for gratuitous care services under s 15 CLA for the services provided by [mother/father/sibling/family member]. The services were provided for a period of at least 6 hrs per week for at least 6 months (s 15(3)), and they were of a domestic nature, relating to nursing and [Plaintiff] did not pay for them (s 15(1)). The court must be satisfied that, there was a reasonable need for the services (s 15(2)(a)), the need for them arose solely because of the injury caused by [Defendant] (s15(2)(b)), and the services would not otherwise have been provided (s 15(2)(c)). [APPLY FACTS] Subsequently, damages will be assessed based on the market rate of nursing day care services (Griffiths v Kerkemeyer). [APPLY FACTS/CALCULATE] Loss of capacity to provide domestic services INTENTIONAL TORTS: Damages for loss of capacity to provide domestic services are not available at common law (CSR Limited v Eddy (2005)). CLA S15B: On the facts, [Plaintiff] had been providing her dependents with domestic care services prior to the accident, for X amount of time (above 6 hrs/wk and 6 months), and the dependents are not capable of performing the services themselves. Thus, the requirements of s 15B(2) will be satisfied. Consequently, where it can be established that the loss would not be recuperated/rectified under another head of loss, [Plaintiff] will be able to claim and their damages will be assessed per s 15B(5) CLA. Non-Economic Loss [Plaintiff] may claim for [harm], as non-economic loss accounts for any pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement (s 3 CLA), even where the loss is not monetarily quantifiable (CSR v Eddy). This is governed by s 16 CLA. In order for damages to be awarded [Plaintiff] must show that their loss was at least 15% of a most extreme case (s 16(1) CLA). [APPLY FACTS], thus it 8

REMEDIES is likely [Plaintiff]’s injury will/will not meet the required threshold to claim. The indexation of the maximum amount claimable is currently $635,000. Under s 16(3) the proportionate amount of the X% of the indexation is X% (refer to table). Thus, their damages would be assessed at X. o Compensable loss depends on the objective severity of the injury as well as the consequences for the individual (Thatcher v Charles). Loss of Past/Future Earning Capacity As [Plaintiff] has been/is unable to work due to the injury either permanently, temporarily, wholly or partially (NSW v Moss), they may be compensated for this loss (s 13 CLA). This is assessed in accordance with the process established in IAG Ltd v Mares: STEP ONE: Pursuant to s 13(1) the court may only make an award of damages for future economic loss if they are satisfied that the assumptions relied upon accord with the [Plaintiff]’s most likely future circumstances ‘but for’ the injury. Assess the most likely of possible future economic circumstances, ‘but for’ the accident. [APPLY FACTS] Refer to [Plaintiff]’s earning capacity prior to damage. Can include assessment of: (Nominal Defendant v Livaja) o work undertaken immediately prior to accident o skills, training and experience o likelihood s/he would have continued in that employment o possibility of promotion/other benefits o likely age of retirement o possibility employment would not have been continuous Further, the court is to disregard the amount (if any) that [Plaintiff]’s gross weekly earnings would have exceeded an amount 3 times the average weekly earnings at the date of award (s 12(1)). STEP TWO: Assess the claimant’s current economic prospects. [APPLY FACTS]

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REMEDIES STEP THREE: Compensate [Plaintiff] for the difference between the two. Where it is difficult to calculate the court may apply a ‘buffer’ (Pollard v Baulderstone), the court must state the assumptions on which the award was based (s13(3)). STEP FOUR: s13(2) CLA determines that the amount must be adjusted to account for the vicissitudes of life. This is usually a reduction of 15% (Alliance v Cervantes, however, it will determined on the facts. STEP FIVE: A calculation of the present value of the damages will be done at a 5% reduction (s 14(1)-(2)). [APPLY FACTS/CALCULATE] Superannuation INTENTIONAL TORT: 11% added to net figures for past and future earning capacity (Najdovski v Crnojlovic). CLA s15C: Where [Plaintiff] can claim for loss of earning capacity, the court will award superannuation calculated by the minimum percentage by law to be paid as employer superannuation contributions (s 15C(2)) for the loss payable under the head of loss of earning capacity (s 15C(1) CLA).

Pure Mental Harm Option One: Pt 3 CLA ‘Mental Harm’ [Plaintiff] will be able to claim under Part 3 CLA as they have suffered ‘pure mental harm.’ S 27 defines: o mental harm: ‘impairment of a person’s mental condition’, o pure mental harm: ‘mental harm other than consequential mental harm,’ and o consequential mental harm: ‘mental harm that is a consequence of a personal injury This case is distinguishable from the case of Flight Centre Limited v Louw, as [Plaintiff] has suffered more than ‘mere disappointment and distress.’ Indeed, pursuant to s 31 CLA, in order for damages to be awarded, the mental harm must constitute a recognised psychiatric illness. It must also be established that a person of normal fortitude would have suffered a recognised psychiatric illness in those circumstances (Jaensch v

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REMEDIES Coffey) [APPLY FACTS]. SECONDARY PLAINTIFF: Further, s 30 CLA provides some limitations on recovery. As [Plaintiff] is a secondary plaintiff it must also be satisfied that they witnessed the victim being injured or that they are a close family member of the victim. [APPLY FACTS]. Option Two: Part 2 CLA ‘Personal Injury’ Impairment of a mental condition will amount to a personal injury for the purposes of pt 2 of the CLA (s11(b) CLA). Therefore, she may claim under s16 of the CLA for non-economic loss due to loss of amenities of life. It can be inferred that she has lost the capacity ‘to enjoy life to the full as, apart from her injury’s, she might have done’ (Skelton v Collins). However, she will need to satisfy s16(1) that her damage amounts to at least 15% of the most extreme case, in order to claim an assessment of damages under s16(3). Consequently, it is likely/unlikely that the court will award damages for this head of loss.

Aggravated/Exemplary Damages INTENTIONAL TORT: As [Plaintiff] has suffered as a result of an intentional tort, they may be able to claim for aggravated or exemplary damages. Aggravated damages will be award where [Plaintiff] has suffered feelings of humiliation, fear or embarrassment as a result of the tort, whereas exemplary damages will be awarded as a deterrent to the defendant (New South Wales v Ibbett). The court will look at the consequence or manner of the trespass/intentional tort (Ibbett).

Property Damage Common law As [Plaintiff] has suffered damage to her LAND/HOME, it is likely that they will be awarded the reasonable and necessary cost of repair/rectification (Bellgrove v Eldridge). This fulfils the courts objective of placing them in the pre-tort position (Livingstone). However, if this is not possible/reasonable, [Plaintiff] will be

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REMEDIES awarded the difference in value between the property worth prior to the tort and its current worth. Costs of repairing a commercial building will usually be in excess of the diminution in value and viewed by the courts as unreasonable (Pantalone v Alaouie), whilst the cost of repairing a family home will be reasonable due to sentimental value (Evans v Balog). As [Plaintiff] has suffered damage to a GOOD, it is likely that the court will award the market value of replacement, as this is usually the cheaper option. However, if the good is rare/expensive/P had put time and effort into getting it to its current state/it holds sentimental value, the cost of repair may be awarded, even when this a higher amount than the cost of replacement (Beaumont v Cahir). If the good has been lost/destroyed or been sold to a third party (i.e. conversion) then the only option is replacement/recovery of the full value of the good (Butler v Egg & Egg Pulp Marketing). Note: may be more effective for [Plaintiff] to waive the tort and claim specific restitution under equitable remedies (s 93 CLA refer below), or money had a received in order to claim the proceeds of the proceeds of the sale. o If the plaintiff has already done repairs/rectifications at the time of award of damages, must determine if the actual cost (will be strong indica of reasonable cost) was also the reasonable cost (reasonable cost will be awarded). o Must consider the defendant need not pay for the betterment of the plaintiff (Hyder Consulting v Wilh Wilhelmsen Agency) o If the plaintiff voluntarily undertakes work that costs less than the prima facie measure, then the lesser amount (actual loss) will be awarded (Hyder Consulting v Wilh Wilhelmsen) o Court does not concern itself with what a plaintiff does with their damages and whether they intend to actually repair, but it may impact reasonableness (Bellgrove) ...