Remedies-Notes - Summary Remedies PDF

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Remedies Tort.............................................................................................................................................................. 2 Damages for Personal Injury.................................................................................................................... 2 Compensatory Damages...................................................................................................................... 2 Loss of Earning Capacity.................................................................................................................. 2 Needs: Medical and Related Expenses............................................................................................. 4 Needs: Gratuitous Attendant Care Services..................................................................................... 4 Loss of Domestic/Parenting Capacity............................................................................................... 5 Non-Economic Loss.......................................................................................................................... 5 Damages for Property Torts..................................................................................................................... 6 Calculation of Diminution in Value................................................................................................... 6 Plaintiff’s Duty to Mitigate Loss / Reduction for Betterment............................................................ 7 Consequential Losses....................................................................................................................... 8 Unauthorised Use – Detention of Property...................................................................................... 8 Injunctions and Equitable Damages................................................................................................. 9 Specific Restitution........................................................................................................................ 11 Deceptive Trade Practices.......................................................................................................................... 12 The meaning of “in trade and commerce” under s.18 of the ACL..........................................................12 The meaning of “classes of persons misled under s.18 of the ACL.”.......................................................15 When does a representation as to a future matter, including a non-fulfilled promise, amount to a contravention of s.18 of the ACL?.......................................................................................................... 17 When does silence amount to misleading and deceptive conduct under s.18 of the ACL?....................18 In what circumstances is a contravention of s. 18 of the ACL a cause of loss and damage and what if any is the effect of a disclaimer clause under.18 of the ACL?........................................................................ 21 How are damages assessed under s. 236 of the ACL?............................................................................23 What is the meaning of the phrase “a person involved in a contravention” as defined in s. 2 of the ACL? .............................................................................................................................................................. 27 What is the effect on a claimant’s claim for damages under s.236 of the ACL, where the claimant or their advisor knew or should have known that a statement made to them was misleading or deceptive? .............................................................................................................................................................. 28 When does a cause of action first accrues under s. 236 (2) of the ACL?.................................................28 How can the remedy, “such orders as the Court thinks appropriate” (s. 237 of the ACL) be used by the Court to grant relief to a claimant who is likely to suffer loss or damage from conduct in contravention of s.18 of the ACL?................................................................................................................................. 29 To whom can injunctive relief be given under s. 232 of the ACL?...........................................................30

1

Tort and Contract Damages for Personal Injury (General) Largely limited by Civil Liability Act 2002 (NSW), Part 2 (‘CLA’) The law says the best way of assessing loss is to measure effect on P’s;   

Capacity to Earn (Economic) Capacity to Enjoy Life (Non-Economic) Costs of Managing Injury (Economic)

Damages are assessed at date of trial Non-Economic loss is assessed in trial-date values Pre-trial economic losses assessed in historic amounts, and interest may be added if P is out of pocked (CLA s18) Future economic losses assessed in trial-date values and present value of this is awarded (CLA s14) Loss of Earning Capacity 

Victim is compensated for lost ‘capacity’ to earn, not for lost earnings. The victim must prove both; (Medlin v SGIC (1995) HCA) 1. Capacity to earn totally or partially lost because of injury a. Courts may increase potential future income assessment. (Norris v Blake (No.2)) b. Courts may include the capacity yet to be realised, eg: a student. c.

Courts must determine what P’s future, uninjured would have been. May include other uncertainties and contingencies (Malec v JC Hutton)

d. Damages for future loss of earnings assessed on basis that P working in same job until retirement. Court decides this on B.O.P. 2. Lost capacity was and/or will be productive of financial loss a. Where loss of capacity of partial, residual capacity (work that P can still do) is deducted from pre-injury capacity. 

If CLA applies, pre injury gross earnings in excess of 3 times average weekly earnings disregarded, and tax payable then deducted, s.12 CLA



Collateral Benefits (money from elsewhere for the same injury) may be calculated in the assessment of lost capacity: o Not deducted from total if MUST be repaid (statutory benefits, workers comp, medicare, etc) o Gifts, acts of charity are conferred with intention of benefitting P, not D, so are not deducted from the total. (Zheng v Cai (2009) HCA) o First party insurance and pension plans not deducted, or else D would benefit from premiums paid by P o Other benefits; Annual Leave, Sick Leave, Long Service Leave etc) ARE deducted.

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

Costs arising in realising earning capacity are deducted, eg: travel expenses to and from work. (Sharman)



Wages from ‘lost years’ are included, minus the expenses that would have been incurred during this time. (Sharman)



Minimum employer superannuation contributions are added (CLA, s15C)



This rule does not apply to child care (Wynn)

Medlin v State Government Insurance Commission (1995) 182 CLR 1; o

A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that his or her earning capacity has been diminished by reason of the negligence-caused injury and that this has been productive of a financial loss.

o

The compensable loss is not a loss of income but the loss of capacity to earn income. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in the estimation of possibilities, not proof of probabilities.

o

A defendant who asserts that a totally incapacitated plaintiff has a residual earning capacity bears the evidentiary onus of making good that contention.

o

In the case of a partially incapacitated plaintiff, the onus of proving the amount of the financial loss rests with the plaintiff.

o

McHugh J at (23) – A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff’s reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves.

Sharman v Evans (1976) 138 CLR 563; P rendered paraplegic by car accident caused by D o

P, if uninured would soon marry and would never have worked again.

o

Injury destroyed prospects of marriage as well as capacity to earn. 

o

Solution, assume that uninjured she would have worked to retiring age.

Courts must not ‘Double compensate’ a common example is where both loss of future income and future medical care account for boarding and lodging expenses.

o

A plaintiff is also compensated for money he would have made during his 'lost years' (this is when an injury is likely to shorten a person's lifespan and he will 'miss out' on years).

o

When accounting for 'lost years', the court deducts the amount that the person would have expended on himself during those years.

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485;

3

o

The High Court described the four factors, apart from death, that were relevant in calculating contingencies as sickness, accident, unemployment and industrial disputes.

o

The court observed that not all contingencies are adverse and that any positive considerations (such as advancement in employment) are also to be taken into account.

o

The court pointed out that contingencies are to be considered in terms of their likely impact on the earning capacity of the injured person concerned, not by reference to the workforce generally.

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; o

Plaintiff had degenerative spine which may, sooner or later, have rendered him unemployable and this may in turn have caused psychiatric illness

o

P suffered industrial disease, due to employer’s negligence, which led to permanent psychiatric illness

o

Lower courts found, on balance of probabilities, that pre-existing and unrelated susceptibilities would have totally disabled him before trial even without the defendant’s wrong, and limited damages to that period

o

HCA: possibility of unrelated unemployment may have eventuated before trial, but could not be determined as a “past fact”

therefore treated as a contingency, affecting not only loss of earnings but also medical expenses and non-economic loss Norris v Blake (No 2) (1997) 41 NSWLR 49; o

Mr Blake’s loss of earning capacity was compensated through one calculation based upon the likely earnings of a successful actor in Australia together with an additional amount to reflect the chance that he may have become a superstar in America.

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Needs: Medical and Related Expenses 

Damages are awarded for “needs” to extend that expenditure would be ‘reasonable’ to satisfy the need.



Damages under this head are not restricted by the CLA Sharman v Evans (1976) 138 CLR 563; P rendered paraplegic by car accident caused by D o

institutionalisation (about $130,000) or home care including house modifications ($400,000)?

o

institutionalisation awarded, plus $20,000 for excursions

o

“The touchstone of reasonableness … is …. cost matched against health benefits … The present … is a case of alternatives in which the difference in relative costs is great whereas the benefit to the plaintiff of the more expensive alternative is entirely [on the evidence given] one of amenity, in no way involving physical or mental well-being”

Needs: Gratuitous Attendant Care Services 

Where needs are met without cost through the services provided gratuitously be friends or relatives, economic damages are awarded under the doctrine of Griffiths and Kerkemeyer.



Assessed by reference to market value (Van Gervan v Fenton (1992) HCA), now capped by CLA



Available even where D is care provider: Kars v Kars (1996) HCA





o

(majority) no double jeopardy, care provided by D and damages paid by his insurer

o

(Dawson J) care was act of benevolence (collateral)

CLA Provisions under s15: o

Must be “reasonable” need for assistance

o

Need must have arisen “solely” from injury

o

No damages if assistance would have been provided anyway

o

No damages unless assistance required for more than 6 hours a week and for more than 6 consecutive months

o

Damages subject to maximum hourly rate 1/40 AWE, and weekly maximum of 40 hours

o

No interest chargeable: s18

CLA Provisions as to 6 hour and 6 month minimums: o

“15(3) no damages may be awarded … 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”

is (3)(b) a continuing or threshold requirement (Hill v Forrester) o

Continuing? - damages only for periods of at least 6 months – no, Handley AJA not deciding

5

o

Threshold? - once 6-month threshold satisfied, damages for earlier periods of less than 6 months – yes (Tobias JA & Sackville AJA, Handley AJA dissenting) | subsequent periods of less than 6 months – yes (obiter, Tobias JA & Sackville AJA)

for the 6-month period, are (a) and (b) concurrent or independent requirements o

concurrent? - every week in 6-month period must be at least 6 hours – yes (obiter, Handley AJA and, tentatively, Tobias JA)

o

independent? - damages only recoverable for weeks of at least 6 hours, but 6-month period may comprise weeks of less than 6 hours – yes (obiter, Sackville AJA, provision is not ambiguous)

Griffiths v Kerkemeyer (1977) 139 CLR 161; o

the High Court decided that compensation could be awarded in respect of the injured person’s need for care and assistance even if that need was met gratuitously by relatives or friends at no cost to the claimant.

o

This is calculated at the ‘Commercial Value’ Ie: If your wife takes care of you gratuitously, you can still extract that value of someone taking care of you.

Hill v Forrester (2010) 79 NSWLR 47) o

The Court essentially found that no domestic assistance damages for gratuitous service should be provided unless the care was given for at least six hours per week and for a period of at least six consecutive months.

Loss of Domestic/Parenting Capacity 

loss of capacity to provide services to others not covered by Griffiths v Kerkemeyer principle as it is a non-economic loss of amenity (CSR Ltd v Eddy (2005) HCA)



Civil Liability Act, s.15B o

Abolishes non-economic damages for lost capacity to provide services to defined dependants

o

Economic damages, and only in relation to dependants physically or mentally incapable of caring for themselves

o

Similar thresholds to s 15 (6 hours, 6 months etc)

o

No interest: s.18

Non-Economic Loss 



Defined in CLA s3 as; o

Physical pain and suffering (subjective)

o

Loss of amenities of life (ability to engage in pleasurable activities, essentially subjective)

o

Loss of expectation of life (where life expectancy shortened by injury)

o

Disfigurement

Statutory maximum (currently $594,000) awarded only in “a most extreme case” s.16 CLA

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

o

court assesses plaintiff’s total non-economic loss as percentage of “a most extreme case” if less than 15%, award is zero – ie: Someone who loses their entire vision, and is deaf in both ears ‘Approaches’ the extreme case.

o

If 33% or more total non-economic loss, that percentage of maximum awarded

o

If between 15% and 32%, damages increase from 1% to 30% of maximum

No interest: s 18 CLA

7

Damages for Property Torts  Usually no future component, damages enable repair or replacement, and include mitigation and betterment issues o often cheaper to replace than repair (reasonableness) o replacement often superior (betterment)  Interference with enjoyment of land is non-economic  If tort threatened or continuing (trespass, nuisance), injunction Calculation of Diminution in Value 

Where D damages particular property of P: o

o



Damaged property worth less than undamaged  Diminution = pre-damage value minus post-damage value  Usually reflected in cost of repair occasionally repair cost will exceed diminution in value, eg  mass-produced goods, cheaper to buy new than repair damage  property unique, eg O’Grady v Westminster Scaffolding (1962) QBD, classic car  land rezoned, purchaser would demolish house and erect units, eg Evans v Balog (1976) NSWCA  land with undamaged home same value as land with no home

Object of compensation to restore P, provide undamaged property, cost of repair o

Tabcorp Holdings v Bowen Investments (2009) HCA (contract) 

same position does not necessarily mean same financial position, eg where P’s interest in property is not sale

Evans v Balog [1976] 1 NSWLR 36

o

Damage to property due to excavations on property next door. House (quite distinctive, much loved) had cracks in foundations-house was unliveable (virtually had to repair whole house).

o

When valued the property was worth exactly the same as the property with a fully constructed house, value of property lay in the land not the house.

o

If the value of the market price the appropriate consideration? 

o

NO; this was a special house with a distinctive features, lost this not the market value of the property Awarded amount to fix this property. Generally: what is a reasonable costs of repairs.

Diminution in value awarded unless desire to rebuild is reasonable

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o

Reasonable to rebuild family home.

Pantalone v Alaouie (1989) 18 NSWLR 119) o

Commercial property damaged, ordinary nondescript property BUT owner’s rented it out to a mexican restaurant (good tenants, productive business relationship).

o

Demanded property be rebuilt due to uniqueness of lease and inconvenience of trying to find another investment property with a similar income

o

Crt HELD: this was an investment property lacking distinctive features, inconvenience not relevant, there were similar investments properties around and no guarantee that even if you rebuilt this property that the mexican tenants would come back.

O’Grady v Westminster Scaffolding Ltd [1962] 2 Lloyd’s Rep 238; o

Beautiful old car, damaged by D

o

Cost of repairs significantly outweighed cost of new vehicle.

o

HELD: Pennycuick MJ: .. Where the cost of repairs would exceed the market value of the article, and in the absence of special circumstances, the reasonable method must be to purchase a ...