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Contents: Remedies Case List Part A: Question 1......................................................................................................................................................... 2 Damages for Personal Injury................................................................................................................................... 2 Sharman v Evans (1977) 138 CLR 563.................................................................................................................. 2 Griffiths v Kerkemeyer (1977) 139 CLR 161..........................................................................................................2 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638....................................................................................................2 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485..................................................................3 Medlin v State Government Insurance Commission (1995) 182 CLR 1..................................................................3 Norris v Blake (No 2) (1997) 41 NSWLR 49.........................................................................................................4 Hill v Forrester (2010) 79 NSWLR 47...................................................................................................................4 Damages for property torts......................................................................................................................................5 O’Grady v Westminster Scaffolding Ltd [1962] 2 Lloyd’s Rep 238........................................................................5 Harbutt’s Plasticine Ltd v Wayne’s Tank and Pump Co Ltd [1970] 1 All ER 225...................................................5 Hoad v Scone Motors P/L [1970] 1 NSWLR 88.....................................................................................................5 Evans v Balog [1976] 1 NSWLR 36.......................................................................................................................5 Pantalone v Alaouie (1989) 18 NSWLR 119).........................................................................................................6 Injunctions for property torts..................................................................................................................................7 LJP Investments P/L v Howard Chia Investments P/L (1989) 24 NSWLR 490......................................................7 Bendal P/L v Mirvac Project P/L (1991) 23 NSWLR 464......................................................................................7 Wrotham Park Estate Co v Parkside Homes Ltd [1974] 2 All ER 321....................................................................8 Miller v Jackson [1977] 3 All ER 338....................................................................................................................8 Kennaway v Thompson [1980] 3 All ER 329..........................................................................................................9 Seidler v Luna Park Reserve Trust (1995) BC9505507..........................................................................................9 Redland Bricks Ltd v Morris [1970] AC 652........................................................................................................10 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287)..........................................................................10

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Part A: Question 1 (Torts) Damages for Personal Injury Sharman v Evans (1977) 138 CLR 563 Facts  

P (Evans) injured in car accident by D (Sharman) Became fully incapacitated. 20 years old with ‘extremely bright future’

Legal issues: double compensation, deductions for outgoings, lost years, new economic needs Judgement:  Double Compensation: o The court must be careful not to double compensate. A common matter of double compensation is where both loss of future income and future medical care account for boarding and lodging expenses.  Deductions: o "It is necessary to avoid compensating for gross rather than for net losses." o Court accounts for 'outgoing expenses' - usually incurred in the process of holding a job (transport, clothing etc.) that will now not be incurred; 'saved expenditure'. o However, no deduction for saving expenses which were incurred due to pastime activities, or maintenance of oneself or one's dependents.  Lost Years: o P is compensated for money they would have made during their 'lost years' (when an injury is likely to shorten a person's lifespan and they will 'miss out' on years). o When accounting for 'lost years', Court deducts the amount that P would have expended on themselves o In this case, question whether D must compensate P's medical costs of remaining in hospital for the rest of her life vs. costs of home-care ($130,000 vs. $400,000) o Decision reached on a normal standard of reasonableness - costs v benefit o Benefit here was amenity, no physical or therapeutic benefit of home care o Therefore, D compensates P for future medical treatment at the hospital (cheaper) o However, the 'loss of enjoyment/amenities' damage will be greater o D will pay extra to allow P to visit her home to alleviate loss of enjoyment 

“In Sharman v Evans the plaintiff was compensated for loss of earning capacity and would have used her earnings to pay for the necessities of life like housing and food. As the award for institutional care would provide accommodation and meals, the court reduced her damages for loss of earnings accordingly. This might be analysed as a benefit to the interest represented by earning capacity for which she was compensated.”

Griffiths v Kerkemeyer (1977) 139 CLR 161 Facts: P permanently disabled, services provided gratuitously Legal issues: assessment of damages, gratuitous care, market cost of provision of services or loss suffered by person providing them Judgment:  Held: a person whose injuries have created a need for care that might otherwise have been provided in a hospital or by a paid nurse, or for domestic services that he or she is no longer able to perform, is entitled to recover the cost of those services whether they are provided gratuitously or commercially.  Any legal or moral liability to repay the gratuitous carer is irrelevant

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Facts:  Plaintiff had degenerative spine which may have rendered him unemployable, may in turn have caused psychiatric illness  Suffered industrial disease due to employer’s negligence which led to permanent psychiatric illness

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Legal issue: uncertainties and contingencies Judgment:  Lower courts: on balance of probabilities, pre-existing and unrelated susceptibilities would have totally disabled P before trial even without D’s wrong; limited damages to that period  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 noneconomic loss

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Facts:    

Senior female executive for American Express, aged 30 Injured in a car accident – earning capacity destroyed Had she not been injured, would have started a family and returned to work Question of whether a deduction should be made for the costs of child care that would have been incurred.

Legal issues: Contingencies and loss of earnings Judgment:  Held: "Calculation of future economic loss must take account of the various possibilities which might otherwise have affected earning capacity."  "Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account."  "Contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally...Even so, the practice in New South Wales is to proceed on the basis that a 15% discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff's particular circumstances."  Negatives: prior back injury, intention to start family  Positives: very good prospects of promotion  Trial Judge: 5% reduction – positives were so strong, failed to reflect negatives  NSWCA: 28% reduction – based on generalisations, not on evidence – good chance she would want to be a mother  HCA: 12.5% reduction  NOTE: this case was based largely on gender assumptions

Medlin v State Government Insurance Commission (1995) 182 CLR 1 Facts:  Plaintiff injured in mid-50s  Physically able to continue working to age 65 but took voluntary early retirement at age 60  Claimed that even if he retired at 65 he would have come back as a part-time lecturer later – courts will compensate if you can prove this Legal issues: Economic loss, earning capacity. Judgment:  No residual capacity following voluntary early retirement  Capacity to work was affected not actual earnings  Injury contributed materially to decision to retire (causation), questions of mitigation and reasonableness did not therefore arise  Awarded partial loss of earnings from injury to retirement, and total loss of earnings from retirement to 65  Ratio – must prove: o capacity to earn totally or partially lost because of injury o lost capacity was and/or will be productive of financial loss

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Norris v Blake (No 2) (1997) 41 NSWLR 49 Facts:  Mr Blake, the Sydney actor described as “the new Mel Gibson”, was permanently brain damaged and left in almost complete paraplegia after a car accident in South Australia on the last day of filming ‘The Lighthorsemen’, in December 1986  60-70% chance of reaching considerable success as an actor in the US (earning $1 million to $2 million a movie) and a 30% chance of reaching the superstar bracket.  “Very determined, ambitious and intelligent young man with “extraordinarily good looks” – prerequisites to achieving superstardom Legal issues:  Contingencies and loss of earnings Judgment:  Initially awarded 30 million dollars for loss of earning capacity  Court of Appeal said present value of earnings as top Australian actor was 5 million dollars, speculation, raised to 7.5 million as lost the chance of super stardom in America  Case confirmed that the ‘vicissitudes of life’ add a sum against the positive contingency of success or incomeearning capacity beyond pension age.

Hill v Forrester (2010) 79 NSWLR 47 Facts:  Personal injuries caused by D’s dog Legal issues: personal injury, CLA s 13 (gratuitous care) Judgment:  The six hour per week "intensity requirement" contained in s 15(3)(a) of the Civil Liability Act 2002 (the CLA) is a continuing one. A plaintiff can only recover damages for gratuitous care for periods where it can be established that the services were provided (or are to be provided) for at least six hours per week.  Where a plaintiff satisfies the six month "duration requirement" contained in s 15(3)(b) of the CLA they are permitted to recover damages for gratuitous care provided during earlier broken periods of less than six months in duration

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Damages for property torts O’Grady v Westminster Scaffolding Ltd [1962] 2 Lloyd’s Rep 238 Facts:  Lovingly restored classic car “Hortensia”  Cost of repair (£250) exceeded price of buying the same model (between £130- £240), diminution in value £170 max Legal issues: diminution in value, compensation and mitigation, reasonableness Judgement:  Held: most expensive option (repairing) WAS reasonable – sentimental attachment to car therefore reasonable to want to repair that classic car rather than purchase similar car

Harbutt’s Plasticine Ltd v Wayne’s Tank and Pump Co Ltd [1970] 1 All ER 225 Facts:  Pipes supposed to be insulated, factory burned down and had to be rebuilt  Had no plans to modernise; effectively forced modernisation on P  D argued for reduction based on increased capital value of building, not on account that maintenance costs would be lower Legal issue: Should damages be reduced to reflect “betterment”? Judgement:  If the plaintiff would, even without the wrong, have improved or replaced the property at some later time, the defendant’s wrong has simply accelerated the incurring of this expense and damages may be limited to the acceleration. If the plaintiff would not, without the wrong, have improved or replaced the property at all, then there should be no reduction for betterment  N.B. arguable that there should be a deduction in damages to reflect the savings in maintenance costs arising from a new building (Tabcorp Holdings Ltd v Bowen Investments P/L (2009))

Hoad v Scone Motors P/L [1970] 1 NSWLR 88 Facts:  P’s 7 year old tractor (worth $1,500) and lawn mower (worth $350) were negligently destroyed by fire  P typically replaced tractor every 5 years, holding on to old one because farming license was due to expire 18 months after tort  P needed machines to continue farming operations, failure to replace them would have resulted in operating losses  No suitable second-hand machines were available so P bought a new tractor ($4,998) and mower ($776.50) Legal issues: betterment Judgement:  The NSWCA majority (applying British Westinghouse Electric & Manufacturing Co v Underground Electric Railways Co of London [1912] AC 673, and distinguishing Harbutt’s) held that the benefit to the plaintiff, in buying new equipment, should be offset against its cost: either the defendant’s tort accelerated an inevitable expense (if the lease was renewed), or the plaintiff would realise the benefit (if the lease was not renewed and the farm assets liquidated). 

Samuels JA (dissenting, applying Harbutt’s and distinguishing British Westinghouse) saw the plaintiff as entitled to the reasonable costs of mitigation full stop, in this case the cost of the new equipment; whatever happened with the farming lease was an unrelated transaction (similar reasoning to the EWCA in Hussey v Eels [1990] 2 QB 227, below).

Evans v Balog [1976] 1 NSWLR 36 Facts:  House in Bronte destroyed when a property developer excavated the adjoining site causing the plaintiffs’ land to collapse.

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After the excavation commenced (April 1971), serious cracks appeared in the house. The plaintiffs went to court for ex parte injunction which was granted on 12 May 1971, but ignored by the developer.

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Two days later, matter returned to court and developer gave an undertaking in terms of the injunction and contractually undertook to repair the damage already caused; these promises were broken.

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The development continued until the plaintiffs were forced to flee their home

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The damage was extensive and the house uninhabitable. The developer argued unsuccessfully that it was unreasonable to rebuild when the Ps could sell the property for more than enough to buy a similar house elsewhere. The court disagreed. It was reasonable for the plaintiffs to rebuild; it was their family home.

Legal issue: reasonableness Judgement:  1) The measure of damages in tort is that sum of money which will put the injured party in the same position as he would have been in, if he had not sustained the wrong for which he is to be compensated, and this, subject to what appears below, would, in a case such as the present, be the amount of diminution in the value of the plaintiffs' property  2) In the case of tortious damage to a building, however, it cannot be said that the normal, or the only, measure of damages is the amount of diminution in the value of the property. An equally admissible measure of damages is the cost of reinstatement and restoration, even though this be higher.  3) The appropriate test in such case is the reasonableness of the plaintiffs' desire to reinstate the property; and this will be judged in part by the advantages to him of reinstatement, measured against the extra cost to the defendant in having to pay damages for reinstatement, rather than damages calculated by the diminution in the value of the plaintiffs' property.  4) In the present case, the householders' wish to reinstate their property was eminently reasonable. The measure of damages was the cost of restoring what they had lost, namely their home; and not the diminution, however calculated, in the value of their land together with its improvements.  5) The measure of damages on the count in contract was, by the terms of the agreement of which the defendants were in breach, the sum necessary to enable the householders to have the necessary repairs carried out.  Samuels JA, in a case concerning damage to a house, the starting point for compensation is the diminution in value, but that a higher award reflecting the cost of reinstatement and restoration may be made if the plaintiff’s desire to rebuild is reasonable.  Damages assessed on a diminution in value basis typically look at the cost of acquiring substitute property, less the proceeds of sale of the damaged property.

Pantalone v Alaouie (1989) 18 NSWLR 119) Facts:  P’s land collapsed after D excavated adjoining land. The land was an investment property in Beverly Hills. 

The building was being used by the tenant as a Mexican restaurant.

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The costs of reinstating the land were refused

Legal issues: Compensation, reasonableness Judgement:  NSWSC Held: On the basis of Evan v Balong, that the plaintiffs “desire to rebuild cannot be regarded as reasonable”; it was unlikely that the tenant would have hung around until the land and building were restored, and any investment property which gave the same financial return was assumed to be as good as any other to the plaintiff.  Distinguished cost to reinstate the land: o In Pantalone (Commercial) the cost of reinstating the land was refused. o In Evans (Residential) the cost to rebuild was approved. The developer argued unsuccessfully that it was unreasonable to rebuild when the plaintiffs could sell the property for more than enough to buy a similar house elsewhere. The court disagreed. It was reasonable for the plaintiffs to rebuild; it was

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their family home. Investment property could be replaced easily, probably would lose tenants regardless Interest was income stream from rent Although it may be inconvenient to find another property it would also be inconvenient to re-build

Injunctions for property torts LJP Investments P/L v Howard Chia Investments P/L (1989) 24 NSWLR 490 Facts:  D was a commercial developer, asked neighbour to allow them to erect scaffolding which would extend over P’s land. P asked for a fee from D, D refused and erected the scaffolding regardless. 

Market rent for 1 cubic metre of airspace was a few hundred dollars, D’s benefit was between $30k-$50k

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If market rental doesn’t reflect P’s losses then there is room to negotiate

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D had no intention of removing

Legal issues: unauthorised use of land, reasonable fee parties would have negotiated if no market or if market rent inadequate to reflect D’s benefit, injunction, equitable discretion Judgement:  $30k awarded for airspace that P wouldn’t have used anyway – focussing on D’s benefit rather than P’s loss 

Held: Hodson J stated that incurrence occurs where it is of the nature and height which interferes with ordinary usages of the land. He noted that damages shouldn’t be ordered. He ordered nominal damages in this case, and as he believed that an injunction wouldn’t be oppressive (as the D had knowingly acted, and trespass was well known), he ordered a mandatory injunction without specifying the terms. The D completed the development without incurring on the P’s land again.

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Intrusions into airspace may amount to trespass to land if the intrusion is at a height potentially neces...