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 impairment has satisfied the threshold level
(c) the injury is loss of a foetus
(ca) the injury is psychological or psychiatric arising from the loss of a child
(d) the injury is loss of a breast
S 28 LF 2 a psychiatric injury is a significant injury if:
(a) the degree of impairment has satisfied the threshold level
Caps on damages
Maximum amount is $371380 S 28 G
No damages awarded for gratuitous attendant care unless there was a reasonable need for the service which arose solely because of the injury. They must be for over 6 hours a week and for more than 6 months S 28 IA
No damages awarded for care from claimant to another unless the care was provided to claimant’s dependants for at least 6 hours a week and at least 6 consecutive months before the injury S 28 ID
Survival of Actions
This is where the estate of a now deceased person can bring an action on behalf of the P
All provision are under the Administration and Probate Act 1958 VIC
On the death of a person, all actions will survive S 29(1)
No exemplary damages
If the P did not die because of the D’s negligence
Where the defendant’s negligence did not cause death, damages are limited to pecuniary and non-pecuniary losses until the time of death S 29 (4)
If the P did die because of D’s negligence
Where the defendant’s negligence caused death, damages are limited to pecuniary losses until the time of death S 29(2)
S 29 (2A) If the death is from a dust-related condition and proceedings were commencing by the P before his death, damages recoverable by the estate include:
Damages for P’s pain or suffering
Any bodily or mental harm suffered
The curtailment of that person’s expectation of life
Wrongful Death Wrongs Act
Requirements to bring a Wrongful Death claim
S 16: Deceased must have had a cause of action at the time of...