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#6919 - Torts B Summary Personal Injury Compensation (Damages) - Torts Law

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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...

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