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Law Notes Torts Law Notes

Torts B Summary Personal Injury Compensation (Damages) Notes

Updated Torts B Summary Personal Injury Compensation (Damages) Notes

Torts Law Notes

Torts Law

Approximately 398 pages

Here you will find both extended and summarised torts law notes for the entire Monash University topic (Both Torts A and Torts B).

The summary notes are an excellent exam help, with steps to work out whether a particular tort is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.

The extended provide comprehensive information about all areas of the subject...

The following is a more accessible plain text extract of the PDF sample above, taken from our Torts Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Personal Injury Compensation

Damages

  • First determine what type of damages to award

    • Compensatory Damages

      • Key Principle One: Compensatory damages are designed to put P in the same position as if he had not sustained the injuries due to the negligence of D Todorovic v Waller

      • Key Principle Two: Once and for all rule, that is, one damages are assessed, that is the end of the matter

        • The award is final; it is not susceptible to review. It will estimate the future and that will always been wrong so it would be too much of a hassle to review it all the time Camden & Islington Area health Authority

        • Exceptions and reforms to counteract difficulties:

          • Periodical payments

          • Interim payment

          • Provisional (payments re-assed on the occurrence of an event)

      • Key Principle Three: Method of assessment

        • Pecuniary: loss of earning capacity over the ‘lost years’, other calculable expenses

          • Future earning

            • Will be based on what the P was earning at the time of the injury

            • When this is difficult (eg. the P is a child) various methods are employed, making deductions for tax and a 15% deduction for contingencies

          • Medical Expenses

            • Must be proved with receipts

            • The court must decide what future medical expenses should be paid for

            • The Health Insurance Commission will lend P the money, if they don’t win damages they must pay it back

        • Non-pecuniary (see limitations) non-financial loss due to pain and suffering; loss of enjoyment or amenities of life; loss of expectation of life

          • It encompasses all feelings associated with injury and subsequent treatment Sharman v Evans

          • Unconscious P cannot recover as they felt no pain or suffering Skelton v Collins

      • Third parties

        • In some circumstances, P may claim damages for service provided free or gratuitously by a third party Griffith v Kirkemeyer

          • Included commercial cost of nursing, and caring and cleaning by mother

        • Damages are probably not allowed in situations where P was unable to provide gratuitous help to another

          • Supported in Sullivan v Gordon

          • Rejected in CSR v Eddy by High Court

    • Aggravated Damages

      • Given by way of compensation for injury to the P which may be intangible resulting from the manner of wrongdoing by the D

      • They are awarded for injury to the P’s feelings caused by insult, humiliation and the like Lamb v Cotogno

    • Exemplary Damages

      • Where D’s conduct was so outrageous that the court regards the award of compensatory damages as inadequate to punish and deter D or to deter others

      • Must show the conduct of D was ‘high-handed insolent, vindictive or in some other way exhibited a contumelious disregard of the P’s rights’ Uren v John Fairfax & Sons Ltd. Must be evidence of some positive misconduct

      • Right to claim exemplary damages excluded in Vic:

        • See survival or actions

        • Motor vehicle accidents

  • Will the damages be specific or general

    • Specific

      • Cover compensation for monetary loss actually suffered and expenditure actually incurred

        • They are assessed only up until the date of verdict

        • They can be measured, calculated with accuracy

    • General

      • Cover non-pecuniary losses that of their very nature are very difficult to calculate in mathematical terms

      • May be assessed not in reference to a definite time period, but in relation to an indefinite future

  • Limitations on damages – non-economic loss Division VBA Wrongs Act

    • Non-economic loss means pain and suffering; loss of amenities of life or loss of enjoyment of life S 28 LB

    • A person is not entitled to recover damages for non-economic loss unless the person has suffered significant injury S 28 LE

      • S 28 LF 1 an injury is a significant injury if (other than a psychiatric injury):

        • (a) The degree of...

Buy the full version of these notes or essay plans and more in our Torts Law Notes.