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Classification of damages, survival actions and wrongful death…

- - - - What pecuniary sum would put the Pl in the position they would have been in had the tort not occurred?
        
        Admiralty Commissioners v SS Valeria [1922] AC 242.
    - - Damages must be awarded as a lump sum.
        
        Ct has no duty to ensure Pl uses damages appropriately (Todorovic v Waller (1981) 150 CLR 402 at 412).
        
        But s. 65 CLA provides for structured settlements.
    - - For a single cause of action damages must be assessed at common law only once.
        Except in case of continuing torts
        CLA s 65 does allow for structured settlements between parties to be arranged.
        
        In Mundy v Government Insurance Office (NSWSC, 1995, Unreported), Spender JA:
        “looking to the past is one thing; this causes no great difficulties. Looking to the future is an entirely different proposition. This case is a striking example of … laws which require the Court to determine now and finally the money sums which are to be awarded as compensation for an assumed loss of earning capacity and to provide an adequate sum for future care (at 2)”.
    - - Pl has an obligation to mitigate losses and may be denied compensation for a failure to fulfil this obligation.
        
        the test is an objective one (Munce v Vinidex [1974] 2 NSWLR 235).
        
        Boyd v SGIO (Qld) [1978] Qd R 195 – refusal of blood transfusion for reasons other than own belief held to be unreasonable.
        
        In Thynne v Petrie [1975] Qd R 260 – allowing land to be further eroded over considerable period of time in knowledge that the support from the land had been withdrawn by the Def held to be unreasonable.
        
        Pl allowed reasonable time to consider position and weigh risks of action in mitigation
        Hisgrove v Hoffman [1982] 29 SASR 1
        
        Def to prove the Pl failed to mitigate
        
        In Qld s. 53 of the CLA allows Def to give written notice to a Pl suggesting specific action that a plaintiff should take to mitigate their damages.
  - - - Token amounts awarded in recognition of infringement of Pl’s rights or interests, but no damage has occurred.
    - - Same as nominal damages but reflects Ct’s disapproval of action being brought
    - - Heads of Damage for personal injury
        Amounts awarded to reflect actual damage suffered by the Pl. Sub-divided into “special damages” and “general damages” (see below)
        
        Special Damages
        
        Past loss of earnings
        
        loss of earnings from the date of the incident to the date of trial.
        
        Principle is net amount only since Pl would not have had benefit of tax paid from gross salary: British Transport Commission v Gourley [1956] AC 185. Under the Supreme Court Act 1995 (Qld), s. 15, the gross amount is used but notional income tax is to be taken into account (so effectively, net amount).
        
        s.54(2) of CLA – caps loss of earning at 3 times average weekly earnings.
        
        Other expenses
        
        Any other expenses that were reasonably necessary for the pl’s condition. Eg. Diamond v Simpson (No 1) (2003) Aust Torts Reps 81-695 (damages for 4 homes to be modified – Pl’s own, her parents’ and 2 family holiday homes – held unreasonable)
        
        Hospital and medical expenses
        
        Costs arising from hospital and medical treatments up to date of trial.
        Occasionally authorities suggest plaintiff should use free facilities, if available in order to mitigate the loss: Taccone v Electric Power Transmission P/L [1962] Qd R 545.
        
        General Damages
        
        Pecuniary (economic)
        Heads of damage
        
        Past & Future Gratuitous Care
        Griffiths v Kerkemeyer damages ((1977) 139 CLR 161).
        
        In Qld, carer’s benefit is taken into account per
        s.59(4) of the CLA
        
        If Pl can no longer provide gratuitous care to another, such loss may be compensated under s. 59A CLA(CSR Ltd v Eddy (2005) 226 CLR 1 overruling Sullivan v Gordon (1999) 47 NSWLR 319)
        
        Damages representing the value of necessary services provided gratuitously by a relative or friend.
        **Eligibility requirements set out in s. 59(1) CLA
        
        Future loss of earning capacity
        the present impairment of the capacity to earn and not the loss of future earnings as such: O’Brien v McKean (1968) 118 CLR 540.
        
        How long?
        
        from date of trial to pre-trial expected date of retirement.
        
        Discounts
        
        Lost years: Skelton v Collins (1966) 115 CLR 94
        
        Contingencies or ‘vicissitudes of life: those periods of time in person’s earning life that they will not be earning. Is calculated based on fact and would rarely be above 20% and is often under 10%.
        
        How much?
        
        Evidence of past earnings good starting point
        
        Pl can’t recover substantial damages under this head by saying they had potential to earn greatly but previously chose unemployment or under-employment: Thomas v Iselin [1972] QWN 15.
        
        Based on net amount
        
        s. 55 CLA – if can’t calculate precisely. A court may only award damages if satisfied the loss has/will be suffered and must state assumptions upon which the award is based.
        
        Future hospital & medical
        all future ‘reasonably necessary’ medical and hospital expenses, assessed from judgment to Pl’s expected recovery or death.
        
        In serious injury, Ct determines appropriateness of institutional versus home health care: Sharman v Evans (1977) 138 CLR 563
        
        Non-pecuniary (non-economic)
        assessed according to the CLA
        
        Subjective Losses:
        
        Pain & suffering
        
        Loss of amenities
        
        Loss of expectation of life
        
        Disfigurement
        
        Personal injuries
        
        s.61 CLA –
        court to allocate an Injury Scale Value (ISV) between 0-100. See Civil Liability Regulation 2014(Qld) for Scale values.
        
        2 more items...
        
        Encompasses losses subjective to the plaintiff (s. 51 CLA): Pain & suffering; Loss of amenities; Loss of expectation of life; Disfigurement
        
        In Qld CLA caps recovery
        (s. 62)
      - Damages for loss of value of property normally amounts to:
        
        Total replacement costs in the case of total deprivation or destruction:
        Wheeler v Riverside Coal Transport Co P/L [1964] Qd R 113.
        
        Damages = cost of replacement.
        Any betterment to plaintiff may be set off
        [Hyder Consulting (Australia) P/L v Wilh Wilhelsmen Agency P/L (2002) 18 BCL 122]
        
        Consequential Losses
        
        Profit-making property = consequential loss of profits or cost of hiring substitute:
        Liesbosch, Dredger v Edison SS (Owners) [1933] AC 449.
        
        The loss of use of funds and the need to borrow to pay debts may also be compensable:
        Boden v Roy Gordon and Gordon [1985] 2 Qd R 482
        
        The cost of repair or diminution in value (if partially destroyed)
        Murphy v Brown (1985) 1 NSWLR 131
        Davidson v J S Gilbert Fabrications P/L [1986] 1 Qd R
        
        Damages will be the reduced value of the property (ie. repair or reinstatement). Pl must produce evidence of estimate from expert of the diminished value or cost of repairs: Wheeler v Riverside Coal
    - - To punish Def. Often controversial because Pl gets “windfall” (cf with perceived role of compensation in tort - Module 1). Not available for personal injury caused by negligence (s. 52 CLA)
    - - For mental distress. Available for torts that protect reputation but not available for personal injury caused by negligence (s. 52 CLA)
- - - - Relevant factors for determining each dependant’s benefit include
        
        how much/how long deceased would have earned and contributed financially to dependant (Parker v Commonwealth (1965) 112 CLR 295).
        Also, extent and period of dependency (Scholefield v Bates [1958] SASR 317).
      - Pecuniary loss
        
        Representing the financial contribution to the household by the deceased.
        
        Loss of income contributed and financial loss stemming from the death are recoverable (Robertson v Robin [1967] SASR 151)
        
        May be actual or prospective (Berry v Humm & co [1915] 1 KB 627).
      - Non-pecuniary loss
        
        They include household services; and Solatium and loss of consortium.
        
        Allowed if the loss is capable of being assessed in monetary terms.