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Different heads of claim Sharman v Evans Plaintiff 20 years old, secretary, became quadriplegic after accident. Cannot move and talk, severe impairment of respiratory system. She can think and is aware of her surroundings. Experts concluded that life will be shortened but not agreement exactly by how long. Trial judge awarded: $300,547 – Defendant appealed, too high COA: award found not excessive, D appealed to HC HC: 

Loss of earning capacity Gibbs and Stephen JJ: o Need to avoid double compensation – Would have used salary to pay for lodging and food without accident. If nursing and medical already included the food and stay in hospital (lodging) then double compensation. o Less expenditure to produce earning capacity – money on transport and clothes o Distinction between expenditure on maintenance (clothing, transport, maintenance) and expenditure on pleasure – cannot take the expenditure on pleasure away although she is no longer in that position to enjoy it, because other types of pleasure she can indulge in. o Lost years do not mean that compensation will account for it, need to compensate fully, based on pre-accident life span. P to be compensated in respect of lost earning capacity during those lost years which would have been earning income if not for accident. (Need to less expenditure on maintenance, the principle remains the same)

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Loss of earning capacity vs Loss of income earning LEC: Capacity to produce income LIE: Income o If she stops working on basis that she is going to be married, then income will be 0. But income capacity will still be there, she can choose to exercise it or not.

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Loss of capacity to enjoy life o Used to be outgoing, healthy, intelligent, now she is confined to the bed, wholly deprived of everyday pleasures and lifestyle she enjoyed before the accident. o Difficult to assess, notion of perfect compensation must be avoided. If there is a range, to take the lowest. No matter how much you give, cannot return the capacity.

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Pain and suffering is continuous, difficult to assess – same notion of perfect compensation to be avoided Needs created by the injury o Medical and nursing costs fully compensated. o Difficulty is the future: Home care vs Hospital care – home care more expensive but is the Plaintiff’s preference o Should defendant be made to pay compensation on a more expensive basis? o Question is not what are the ideal requirements but what are the reasonable requirements of P. No benefit for her to be home, risk higher at home. Life not

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prolonged by staying at home. – Future enjoyment of life would be better at home – altogether, should be cared for in the hospital. 

Loss of life expectancy o Very difficult to put a value to this head of claim- Barwick CJ: award $1250; Gibbs and Steph JJ: $2k; Jacobs J: $6k

Wynn v NSW Insurance Employee of AMEX, successful ad high salaried, very career oriented. Got into car accident, she struggled at work then left to work in family business. She later got married and had children. Discount for contingencies Trial: P would have worked up to 60 years old – looked at positive and negative contingencies – Negative: occasional health contingencies from previous injury; Positive: Promotion to advice vice president in AMEX. Reduce award by 5% to account for the contingencies of life COA: Trial judge failed to account more contingencies – E.g. maternity leave and child care may affect promotion and expense of such will not be accounted for. Reduced award by 8% HC: Yes promotion – no evidence less capable than other career oriented persons. Yes maternity leave – deductions for childcare. Also 4 major areas that expose employees to risk of loss of income: Sickness; accident; unemployment; industrial disputes. In good health despite prior injury at time of accident. Employed in senior position which would not expose her to accidents. Chances of unemployment and industrial dispute low. Injured woman’s loss of earning capacity should be assessed to its full potential reflecting current and anticipated trends. Domestic contingencies would similarly apply to the man. Griffiths v Kerkemeyer P suffered severe injuries and becomes quadriplegic. Cared for by fiancé and family. Argued because services free cannot charge. Gibbs J: Damages for hospital/ nursing services provided for free can be recovered in respect of that need if it is reasonably necessary to provide those services. 2 stage test – (i) reasonably necessary to provide services? Would it be reasonably necessary to do it at a cost? ; (ii) is character of the benefit which P receives by free provision such that it ought to be brought into account in relief (to reduce) the wrongdoer? – E.g. if free services from the govt, then yes to bring in to relief D. Stephen J: Charitable friend or relative is inappropriate person to be saddled with ultimate loss, so long as there is no double compensation – so if carer already paid for cannot claim again.

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Disgorgement is regardless of loss by Plaintiff – can sue for profit made by Defendant. E.g. Breach of fiduciary duty Restitution is where there is a benefit and corresponding loss Moore v Regent of the Uni of California (1990) 51 Cl 3d 120 : case on which qn 1 is based on Blake and Wrotham changed the law quite a bit from Stoke – if use stoke need to analyse if position still correct Wrotham links with equitable damages Make case notes of the key cases Wrotham: restrictive covenant – can’t do something with the land. Equitable damages is under the lord cairns act – could have got an injunction but court decided not to grant it

House

Business

Registered in joint names TIC Marco paid $40,000 - $160,000 balance by joint mortgage Marco paid all mortgage payments

Autoparts registered in her name Marco did unpaid work, attended meetings with her and supplier, paid for renovations and business equipment

Legal Holding: 50 -50 Resulting Trust: Look at presumed intention of parties from the transaction – look at contributions at time entered into Marco: 120,000 – 60% Maria: 80,000 – 40% Maria holds 10% on resulting trust for Marco

Spectrum of obligations:

Is it a gift? (i)Actual intention; (ii)Presumption of advancement

Unconscionable for Maria to maintain benefit of help? He did not say that he wanted a part of the business. Nothing that she said to induce a belief that he has an interest in the business.

Onus of proof on the person to rebut the presumption of resulting trust. He liked her but not enough to established an intention to gift Constructive Trust: Marco: $140,000 Maria: $0 Considered a partnership because they were working together to acquire assets (investment purposes) After you pay the bank – you have $100k left Person who makes the greater contribution gets the greater share (Muschinski v Dodds) Profits divided by 2 because of the personal relationship the parties shared. Includes non-financial contributions like homecare and family care – e.g. she did take out the loan and had the debt so she did contribute. (Baumgartner v Baumgatner)

Freehelp -------- quantum merit---------- trust Is it a joint endeavour? Not a couple, they are friends.

Quantum merit is like if contract void or frustrated and I’m entitled to money, done work that is accepted – unjustly enriched

In breach of contract with Station X – loss from the bargain under the contract Why would they want specific performance? Want to keep Trisha Is there a right to specific performance? 1. Jurisdiction  Equity has 2 jurisdiction – auxiliary jurisdiction (covers where it is a creature of common law) – “Equity follows the law” – Need a valid contract  Inadequacy of damages (unique or fungible goods; presumption in Australia that land is unique, Canada takes a different approach, need to investigate how unique the land is) 2. Discretion  Should equity grant specific performance? In cases where the court has jurisdiction to award damages, they may decide not to give specific relief, so you need to look at discretionary factors. Equitable damages under the Lord Cairn’s Act given only if Court has jurisdiction. What is the damage under the contract? Providing personal service, she is valued for her personality, a brand name on her own – clear that damages would be inadequate Discretionary factors (defences to specific performance): 

Hardship to defendant Generally equity will not make an order for someone to run at a loss (Diagnostic X-ray Services v Jewel Food Stores) – but she willingly incurred luxuries knowing that she was receiving this fixed sum of money – Hardship looked at when she had entered into the contract, though equity flexible, unlikely to fall within the exceptional circumstances (Patel v Ali)

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Continuous Supervision – don’t want where parties would continually have to return to Court

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Personal Services Will result in hostile relationship. Consider contract to enter into a contract, e.g. contract to lease [it is an obligation to sign another contract and not to do what that contract says, Court may enforce the first but cannot force you to complete because the later may be a personal service, claim damages]

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Lack of Mutuality – Obligation of P to pay money, D to be a TV host – Cannot enforce against P if D was under 18 under the contract, so P cannot enforce it against D. o E.g. If D obliged to sell house to P and P to paint a painting for D. D decides not to sell the house, P seeks specific performance. But D can argue lack of mutuality, because if P refused painting cannot get specific performance for it because it’s a personal service o Both sides have to be able to be specifically performed. Main thing is whether P would perform. o BUT Lack of mutuality is looked at time of trial, not contract. If P (i) already performed; (ii) ready willing and able to perform, then no problem with lack of mutuality.

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Impossible to do/ Illegality/ In breach of another contract/ Unclean hands...