Remedies Part B PDF

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Part B (Major)...

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Injury: The Plaintiff suffered a loss as a result of the Defendant’s negligent battery which caused him to contract COVID 19. Pursuant to the Civil Liability Act (‘CLA’) 1, the plaintiff will be able to seek compensation both on the ground of economic 2 and non economic loss. 3 The plaintiff's ability to claim domestic assistance and medical expenses will not be detailed within this report. I.

ECONOMIC LOSS

1. Future Earning Capacity; and The plaintiff seeks compensation for future earning capacity pursuant to s12 CLA. The plaintiff is a 45 year old male who previously earned $2400 net per week. Following the accident, the plaintiff reduced his work to 2 days. The plaintiff had taken out income protection for the next 20 years, however this is irrelevant to his calculation. Pursuant to s26F 4, when awarding damages for future economic loss, the court is to disregard any earning capacity after 65 years of age. The following calculations will be based on the next 20 years of the plaintiff’s working life. Under s26E(25) the Court is to disregard the amount of net weekly earnings should it exceed the maximum amount of weekly payments listed under s35 Workers Compensation Act 1987 6, whereby the current limit is $1838.70. This does not apply to the plaintiff has his $2440 income is not 3x the limit. IAG Limited v Mares7 provided a formulation of determining future earning capacity which shows the plaintiff’s entitlements below: Method

Calculations

1. Estimate of Earning over lifetime if uninjured (Eggshell Skulls Rule)

$2400 per week (can assume a working week = 5 days ($480 per day)!

To calculate the present lump sum payment, find the present value of a weekly payment of $1 for a period of 20 years on the 5% column5. As per s14 CLA when an award is assessed as a lump sum, the present value is determined by adopting the prescribed rate of 5%.

$2400 x 20 years, discounted at 5% (666.4)!

2. Plaintiff’s current economic prospects after the injury:!

Working 2 days now at $480 per day assumed = $960!

Amount ($)

(2400 x 666.4)

1,599,360

$960 x 20 years, discounted at 5% (666.4)! (*not including the $1600 Income Protection*) 1 Civil

Liability Act 2002 (NSW) (‘CLA’)

2 Ibid

s13.

3 Ibid

s16.

4 Ibid

s26F

5 Ibid

s26E(2)

6 Workers 7 IAG

Compensation Act 1987 (NSW) s35

Limited v Mares [2016] NSWSC 1892

(960 x 666.4)

639,744

3. Difference between estimate of earnings and current capacity of the injury. 4. Adjust for Contingencies (Vicissitudes of life) s per s13(2).!

1,599,360 - 639,744

959,616

959,615 x 15% *conventional to deduct 15% but variant upon the evidence. From the facts, the claimant’s evidence may have joined a partnership but the contingencies seems reasonable and ‘conventional’ to a personal injury claim.!

Adjust the amount for contingencies outlined within Wynn v NSW Insurance [1995] HCA 53 such as prospects for promotion, likelihood of unemployment and education. (959,615 x 0.85)

815,673.60 Total

815,673.6

2. Future Superannuation Contributions Per s15C CLA, the maximum amount of damages that may be awarded in respect of superannuation contributions is the relevant percentage 8 based on the minimum percentage required by law to be paid. The Superannuation Guarantee (Administration) Act 1992, stipulates under s19(2) 9 the minimum percentage is 9.5%. However in Najdovski v Crnojlovic 10, JJ Basten and Allsop held the approach should calculate the percentage of gross earnings which is equivalent to 11% of loss of net earnings. SuperAnnuation Calculations: Calculations:

Amount ($) Total loss of earning capacity x 11%! 815,673.60 x 0.11

89,724.10

Total

89,724.10

Interest Interest is available for the plaintiff to be compensated for loss surrounding earning capacity and superannuation between the date the cause of action accrued (13 March 2020) to the date of Judgement (September 2020).11 I.

NON ECONOMIC LOSS

It can be inferred the plaintiff concedes over the impairment threshold and is entitled to seek non economic loss (NEL) damages.The plaintiff can be compensated for non-monetary costs resulting from the incident under the following categories: 12 1. Pain and Suffering - plaintiff experiences ongoing symptoms of shortness of breath and constant state of weakness, together with chronic migraine headaches.

8 CLA (n1)

s15C(2)

9 Superannuation

Guarantee (Administration) Act 1992 s19(2)

10 Najdovski

v Crnojlovic (2008) 72 NSWLR 728

11 CLA (n1)

s18

12 Ibid

s3; CSR Limited v Eddy [2005] HCA 64

2. Restriction - plaintiff faces restriction and was advised it will take a long time to see improvement in his lung capacity and muscular strength. He struggles to stand at his drawing desk for more than an hour. 3. Loss of Enjoyment of Life - plaintiff has become withdrawn and does not engage in social activities with his friends very much, whereas we can assume he was previously active. 13 4. Disfigurement - not applicable Section 16 CLA14 sets out guidelines to determine the plaintiff’s NEL. 1. Determine the percentage of a most extreme case (‘MCE’); The Court will evaluate the plaintiff’s case and see if the loss could have been more extreme. Since contracting COVID 19, the plaintiff dealt with a severe case for 3 weeks, and now has ongoing but manageable issues. The cause could have bee more extreme, ie death which would have brought a higher percentage of MCE.. Windeyer J in Thatcher v Charles held it is “not only on the severity of the injury but the consequences for the individual.” 15 From the facts, the plaintiff is unable to sit at his board for more than an hour or concentrate for long periods. Given he is an architect it can be assumed his work takes longer than an hour to complete. This impairment holds large consequences for the individual. Although the plaintiff is not a most extreme for someone who contracted COVID, the Court may find him 25% MCE given his pain and suffering, restriction and loss of enjoyment of life. 2. Maximum Amount; and Civil Liability (Non-Economic Loss) Order 2010 16, states the maximum award for NEL at 1 October 2019 is $687,00017. 3. Calculate Calculations

Amount ($)

25% of a most extreme case = 6.5% (proportion of the maximum amount awarded! 6.5% x 687,000

44,650

Per s16(4), an amount determined is to be rounded to the nearest $500

44,500

Total

44,500

Given the above, the plaintiff’s likely result is approximately $44,500 as the injuries are serious but not enough to significantly impair the carrying on of his life, given he still works 2 days a week and has his mobility.

(n1) s15B(5)(b)

13 CLA 14 Ibid

s16

15 Thatcher 16 Civil 17 The

v Charles (1961) 104 CLR 57, 71

Liability (Non-economic Loss) Order 2010

maximum for 1 October 2020 is $687,000, however it commences 1 October 2020, the plaintiff’s hearing is in September therefore the 1 October 2019 rate applies.

Overall, the plaintiff’s award is as following: 18 Head of Damage

Amount ($)

Past Economic Loss

TBD

Domestic Care

TBD

Medical Expenses

TBD

Future Earning Capacity

815,673.6

Future Superannuation

89,724.10

Non- Economic Loss

44,500 Total

949,897.70

BIBLIOGRAPHY A.

CASES

CSR Limited v Eddy [2005] HCA 64 IAG Limited v Mares [2016] NSWSC 1892 Jurox Pty Ltd v Fullick [2016] NSWCA 180 Najdovski v Crnojlovic (2008) 72 NSWLR 728 Thatcher v Charles (1961) 104 CLR 57 B.

LEGISLATION

Civil Liability Act 2002 (NSW) Superannuation Guarantee (Administration) Act 1992 Workers Compensation Act 1987 (NSW) C.

OTHER

Civil Liability (Non-economic Loss) Order 2010 Furzer Crestani Forensic, Table of Multipliers, 2020

18 Medical

assistance

and domestic care assistance is not included (i.e the gardener and cleaner involved in the plaintiff’s functional capacity...