Does Negligence Law Operate As It Should - Torts Law

Class 22- Does negligence law operate as it should?

Moments of Carelessness and Massive Loss. Waldron

• Fate and Fortune were driving and both were distracted. Unluckily for Fate, he hit Mr Hurt. Hurt wanted 5 million in compensation. It is fair that he gets this compensation but Fate will be ruined for a moment of carelessness.

• Fortune also took his eyes of the road, violating the same duty of care but gets away scot free. Even a small fine would have been nowhere near 5 million.

• Fate would be required to carry third party insurance. Insurance can transform an unacceptable system of liability into an acceptable one or it helps people cope better with demands placed on them.

• Fate got $50 from his negligence because he saw shoes on sale but has to pay 5 million. Fate and Fortune are equally deserving but we treat them differently.

• There is dissonance between outcomes and deserts. There is unfairness because morality differs in proportion to individual outcomes.

• Tort liability is under serious challenge and it does not deal adequately with any of the dimensions of the problems it purports to address.

• Torts tries to cancel out the wrongful gain with the wrongful loss. Yet Fate’s gain is in no way a measure of Hurt’s loss and Fortune has had as much of a wrongful gain but no effort to annul it. Maybe the real aim of torts is to annul wrongfully imposed losses.

• Why shift the loss from Hurt to Fate? Why is Fate signalled out for liability? 5 million is the exact figure of Hurt’s injury and if it is not paid he will have to bear the cost. Hurt an innocent man shouldn’t have to bear that. Neither outcome is just from a distributive justice point of view.

• Losses must always fall on someone. Not to impose liability on the injurer is to impose it on the victim.

• It is up to Hurt to initiate the proceedings of recovering damages. He begins with the legal responsibility.

• The law singles out Fate to bear a massive loss on the basis of the fortuitous outcome of a moment’s carelessness.

• Tort law must be described in terms of its casual consequences or causation. Fortune drove carelessly but Fate injured carelessly. His ruination turns on that distinction. Fate will always be responsible for the disability.

• It is like when the left lane are all speeding and right lane are going slowly in a storm. The left lane all swerve and some hit the careful drivers. Those who did hit did something completely different to those who did not. It is ridiculous to blame half of the dangerous drivers because the accidents were completely random. The lucky drivers will be happy that they avoided people but all of the drivers were reckless in the left lane.

• The law punishes people more greatly for successful criminal attempts. Attempted murder has a much lower prison time. It is a penal lottery. If Abel dies then Cain is put to death because the chance that the gun shot would kill him is 60% and he lost the lottery. If he lives he goes free. The random outcome of the crime determines the outcome of the risk imposed as punishment.

• The risk of hitting someone took place for Fate and not Fortune. The event took place so he has to pay a massive sum equivalent to the victim’s losses. He wrongfully imposed a 30% chance of great loss to another person. Fate gets lucky only if his victim gets lucky.

• Fate and Fortune both suffer from the same imposition of risk and both deserve to suffer. It turns out badly for Fate. Neither can complain about being exposed to this risk. The outcome is zero loss or five million. They exposed the risk on others so they should suffer the same risk.

• We don’t want to cancel the defendant’s wrong but compensate the victim. There could be a no fault scheme levying a charge on negligent drivers or all drivers in general.

• Causation is a lottery system. A no fault scheme treats all drivers the same and levies them. Those with a higher percentage of risk being imposed on victims will have a higher levy. Otherwise drivers face the chance of complete ruin.

Damages: Loss of Aboriginal identity and culture, Exemplary damages of $75,000.00,

Damages for “his injuries and losses” $450,000.00 with no apportionment

between economic and non-economic and apportionment between past and future of 90%:10%. Interests: Plaintiff contended that interest should be calculation at 4% for a period of

almost 50 years from the time of separation to the date of judgment on that part

of the damages which constituted past unremunerated losses ($401,892.20) – ie

$800,569. The State submitted that interest should be allowed on the amount of $401,892

from the date of issue of proceedings to the date of judgment reduced by one

half to account for the long passage of time since the injury – ie $75,597.30.

The court reviewed the relevant authorities about interest and took into account

- The fact that the State had no exposure to statutory interest until 1972

and was not aware of the plaintiff’s impending claim until mid 1990

- “The retrospective effect of the legislation in the present proceedings

could be described as dramatic and as involving an element of

unfairness”. On the other hand the plaintiff has been delayed in receiving his

damages for a lengthy period. The court awarded a lump sum in lieu of interest in the amount of $250,000.

Gray J: The general function of an award of interest is to compensate successful plaintiffs for being kept out of money of which they would otherwise have had the use and benefit. When summarising the effect of the authorities, the Full Court of the Supreme Court of Victoria in Clarke v Foodland Stores Pty Ltd,[3] observed:

It may be accepted that the purpose of the statutory power to allow interest is to compensate the plaintiff for being kept out of his money, although not because he has on that account lost the opportunity to invest it, but because he has thereby been deprived of its use. This has been laid down now by a unanimous High Court in relation to interest on damages for personal injuries: M.B.P. (S.A.) Pty Ltd v Gogic (1991) 171 CLR 657 at pp. 663, 666, approving what was said in this respect by Gibbs C.J. in Batchelor v Burke (1981) 148 CLR 448 at p.455; see also Thompson v Faraonio (1979) 24 ALR 1, at p.3 (J.C.) and, in England, General Tire and Rubber Co. v. Firestone Tyre and Rubber Co. Ltd. [1975] 1 WLR 819, at pp. 836, 841; [1975] 2 All ER 173, at pp. 188, 192; B.P. Exploration Co. (Libya) Ltd v Hunt (No. 2) [1979] 1 WLR 783, at pp. 845-6; [1982] 1 All ER 925, at pp. 974-5 …

Greenwood v Richmond Riparian Management Landcare Inc (2007)

Damages

• The context in assessing damages is of an active and involved middle-age lady with a very high work ethic who had met adversities in her life by becoming involved in further activities. She had five children at the time of the subject accident living at home, in a then age range from 9 to 27 years and, with her husband, had a very full family, social and recreational life. An added strain, however, was the death about one year earlier of her 17-year old son, diagnosis of her mother with a serious disease and incapacity of her father until he died in 2006. Before the accident the plaintiff ran the household but after it her husband has assumed that role. And all of this in a situation where she sustained a serious back injury, since successfully managed, working in the Police Force and was retired after 17 years’ service in 1987.

• Various job opportunities have been offered to her but declined due to continuing pain and disabilities with the left ankle.

• She is willing, should it be medically recommended, to undergo further surgery to the left ankle.

• Non-economic loss: Counsel for the plaintiff claimed an appropriate assessment would be 33 to 35 per cent of a most extreme case based on the devastation done to her domestic and economic life. I think that is somewhat of an overstatement, but counsel submitted also, I think with some force, that the plaintiff’s academic life had been compromised by the accident and injuries sustained and that she will be left in continuous pain with reduced mobility and the need for anti-inflammatory and analgesic medication. Notwithstanding the success of the initial surgery, further surgery in 5 to 10 years for ankle-replacement or fusion is likely with the onset of early degenerative change. The left ankle remains badly scarred and does not provide stability. Overall, I accept counsel’s submission that the plaintiff’s loss of amenities as a mother, wife and worker is substantial and permanent.

• Having in mind my findings detailed above as to the circumstances of the accident, surgery, medical treatment given and to be expected and her continuing condition as stated by the plaintiff, I assess non-economic loss at 30 per cent of a most extreme case, for which the maximum amount under s 16(2) of the Civil Liability Act is $427,000. A severity of 30 per cent attracts an amount, which I will allow, of $98,000.

• Past out-of-pocket expenses: The parties were agreed that at least $5,578.36 should be allowed to cover hospital, surgery, scans, general practitioner and pharmaceutical expenses. The plaintiff claimed in addition an amount of $9,035 to cover pharmaceuticals at the rate of $32.50 per week from the time of the accident to date; the defendant resisted this on the basis there was only $92.21 covered by...