Negligence Compensation For Damages Notes

Compensation for Damages Damages recoverable by the plaintiff The usual method to prove damages is to prove the difference by comparing what the plaintiff can probably earn during the rest of his life, with what he is capable of earning now: Paff v Speed Economic/pecuniary loss Medical expenses, loss of future earning, loss of current earning, etc Non-economic / non-pecuniary loss Pain and suffering, loss of expectation of future life, gratuitous services, etc. "Once and for all rule": damages are awarded in a lump sum, not in periodic sum: Fitter v Veal General damages (cf. Special damages) Gratuitous damages When necessary services have been provided by relatives or friends, the value of the services does not reduce the damages recoverable for negligence causing the incapacity: Value in general should be calculated by reference to their standard of market cost: Griffiths v KerKemeyer; and the plaintiff can freely decide whether or not the damages will be used to recompense the person who provides the service: Kars v Kars Legislation:Civil Liability Act 2002 (NSW) * When the plaintiff is the person who is receiving the services: s 15 Conditions for awarding "gratuitous attendant care services": The service is reasonably provided solely for the injury suffered, and The service would not be provided but for the injury. Duration At least 6 hours per week, and Have lasted at least 6 consecutive month * When the plaintiff is the person who provided the service before the injury: s15B Conditions for ordering loss of capacity to provide gratuitous domestic services: Before the injury, the claimant provided the service to the dependent The dependent were not (will not be) able to perform the services themselves: * minor * physical incapacity * mental incapacity Duration of the service: At least 6 hours per week and More than 6 consecutive months Necessity: will be a need for the services to be provided for those hours per week and that consecutive period of time and the requirement is reasonable. Loss did not arise from a motor accident. (9)(a) Contingency, possibilities In the assessment of damages for loss of future earning capacity, the court must take into account the contingencies or "vicissitude" of life, that is, "the various possibilities which might otherwise have affected earning capacity, however, "child care" and "domestic help" should not be a consideration for the realisation of earning capacity: Wynn v NSW Insurance Ministerial Corporation In terms of loss of earning, the compensation is made based on loss of earning capacity, not the same work opportunity: McCracken v Melbourne Storm Rugby Football Club When a plaintiff has been rendered permanently unconsciousness and is going to die, the damages to be awarded for a loss of amenity of the life should be ordered moderately because the plaintiff is not aware of the deprivation: Skelton v Collins, but * in assessing his loss of earning capacity, regards should have been to the probability of his life had he not been injured, but not only to his shorten life as a result of the injury. When a plaintiff will spend substantially his rest of the life in hospital, a deduction should be made from damages for loss of future earning capacity to take account of saved outside expenses: Sharman v Evans In the assessment of damages for loss of future earning capacity, therefore, the inquiry is about what the plaintiff could have done in the workforce, but for the accident, and what sum of money would the plaintiff have had at his or her disposal, i.e., what is the actual financial consequence of the injury: Husher v Husher Discount rate At common law, according to Todorovic v Waller, a discount of 3 per cent, is to be used in all cases in calculating the present value of a future loss, unless legislation provided otherwise (s 14(2) CLA) In NSW, the discount rate is set to 5 per cent if no specification is provided by regulations. Compensation to third party as a result of death Common Law: Action for compensation for the death of the deceased not maintainable: Baker v Bolton Legislation Approach: The Compensation to Relatives Act 1897 Action maintainable against tortfeasor who causes other's death (s 3(1)) Action be brought by and in the name of the executor or administrator of the deceased (s 4(1)) If the no claim within six months after the death, the beneficial may raise the claim. (s 6B) Nature of the claim: * On behalf of the deceased * For the benefit of the spouse, brother, sister, half-brother, half-sister, parent, and child of the person Definition of executor / administrator, child, parent, spouse (s 7) Only one action shall lie (s 5) Availability of a claim under the legislation Condition precedent: death * Action in tort is maintainable on the basis of a pure economic loss as a result of the death of the deceased: Woolworths v Crotty, and * the damages recoverable by the dependants are not limited to the extent of the limitation clause agreed by the deceased and the defendant: Nunan v Southern Railway Company Causation * The plaintiff only need to show that the death was a consequence of the defendant's negligence, not necessarily to be foreseeable: Haber v Walker Damages * The plaintiff should prove the loss of a reasonable expectation of pecuniary benefit which would have flowed to the family member if the deceased had lived: Franklin v South Eastern Railway Co * The damages may include a loss of domestic services that had been provided by the deceased before his / her death, it is irrelevant whether or not now those parts of the services are provided by family members or outside payable assistance: Nguyen v Nguyen * However, the loss of the plaintiff's own earning capacity is not recoverable, for example, loss of a partner: Burgess v Florence Nightingale Hospital for Gentlewomen * Further, the possibility of a remarriage of the dependant should not be taken into account as a discount of the available compensation: De Sales v Ingrilli * Damages covers funeral expense. (s 3(2)) * Discount not to be ordered for the dependant's acquisition of insurance proceeds, superannuation benefits or social security entitlements. (s 3(3)) * Other consideration: * Contributory negligence will be considered in claims under the Compensation to Relatives Act 1897 and damages will be apportioned accordingly. (s 5T of the CLA) * Whether there is a contributory negligence depends on whether a reasonable person in the position of the plaintiff knew or ought to knew there is a risk. (Minor) (s 5R) s 50(3) intoxication s 30(3) of the CLA, damages for psychiatric injury claim will be reduced proportionately according to the contributory negligence. involving alcohol or other drugs, or where the deceased person was not wearing a seat belt or a protective helmet, as according to s 138(2) MACA Survival Claim Abolition of the common law rule (a personal action dies with the person) * Law Reform (Miscellaneous Provisions) Act 1944 s 2 * 2(1): The deceased's claim against a third party before his death (if not settled) survives after his death. * 2(4): Damage suffered are deemed to the extent when the deceased alive. * 2(5): The survival claim is in addition to the compensation to relatives claim: Kupke v Corporation of the Sisters of Mercy * 2(2): Damages will not include exemplary damages and loss of earning capacity. Where the death was caused by the alleged claim, damages will not include damages for the pain or suffering of the deceased, or any mental or body harm, or loss of expectation of life. (the person is not alive) However, the loss or gain on the part of the estate consequent on the person's death should not be taken into consideration. Action for Loss of Consortium Law Reform (Marital Consortium) Act 1984 s 3(1); CLA Sch 2 s 1: * Action for loss of consortium of a husband and wife is not maintainable. Common law: claims for loss of domestic services are not barred by the legislation: Roads & Traffic Authority v Jelfs Action for Loss of Services Extend the master & servant relationship to employer & employee: Commissioner for Railway (NSW) v Scott, applied in GIO Australia v Robson An employer is not entitled to sue for the loss of services by the deceased under the Compensation to Relatives Act 1897 as the loss of services is a pure economic loss: Barclay v Penberthy s142 MACA: loss of services claim not available in respect of a motor accident. s 12 of the CLA only applicable to the death or injury to person, not available for a company claim: Chaina v Presbyterian Church (NSW) Property Trust Assessment of Damage for Personal Injuries A plaintiff must prove that he has suffered a loss (or 'damage') in order to be able to recover monetary compensation for the negligence of another. The monetary compensation for that loss is called damages. General Principle Damages for personal and are designed for compensation. --> they not been subjected to negligence. put the plaintiff back to the position had Damages are awarded in a lump sum, not in periodic sum --- "the once and for all "rule The court is not concerned with how the plaintiff use their lump sum. The burden lies on the plaintiff to prove each has damages sought. Classification Loss of earning capacity; loss of superannuation benefits; medical and nursing expenses; housing expenses.domestic systems, gratuitous service Damages for payment suffering, loss of expectation of life, loss of amenity of life. ---> discomfort inconvenience, loss of pressure for failing to work, marriage and child-bearing, loss of independence. loss of taste and smell. loss of sports, loss of libido, disfigurement, non-economic loss is not taken into account of the person's wealth Special Damages: economic damages before the date of trial (verdict) Therefore, do not apply discount rate * Economic loss incurred prior to trail = special damages (precisely calculated) * Non-economic loss prior to trial + economic loss + non-economic loss incurred post-trial =general damages (estimate) General Damages: cannot be quantified or precisely assessed: Kars v Kars Vast majority will be general damages * economic loss, * loss of earning capacity * payment of suffering, * loss of amenity of life * loss of expectation of life, loss of 1. Plaintiff was rendered totally blind because of the accident (driver by negligence) 2. Insurance company's arguments: before the accident, plaintiff were awarded the pension. Now he still can therefore should be taken into account in assessing damages. 1. The plaintiff suffered injury in a motor accident. 2. As a result, the plaintiff became quadriplegic. 3. The plaintiff's fiancee and the members of his family came to look after him. 4. The judge ordered the damages even includes a component for services to be rendered by the fiancee and family in the future. 5. The defendant claimed excessive compensation. Pecuniary * Loss of the earning capacity * Loss of future earning * Loss of current earning * Cost of medical (or similar) care * Other losses that are reasonably susceptible of monetary valuation Non-pecuniary * Pain and suffering --- physical pain * Loss of amenity (or loss of faculty) --- mental suffering and felling of frustration The phrase used to describe the provision of money to recompense for "the deprivation of the ability to participate in normal activities and thus to enjoy life to the full. Examples are: *> Inability to engage in recreational pastimes and sport *> Deprivation of sexual pleasure *> Loss of opportunity for cultural fulfilment Loss of expectation of life * * Plaintiff's life expectancy has been shortened as a result of the accident * Gratuitous services Key Concepts Special Damages & General Damages "Once and for all" rule Lump sum Fitter v Veal: Judge will judge the damage on a one sum basis.The plaintiff will not be able to receive future compensation. Paff v Speed The usual method of proving damages is what the plaintiff can probably earn during the rest of his life by comparing what they are capable of earning now. National Insurance ANZ v Espagne The social benefit the plaintiff can receive are not to be regarded as mitigating for his loss of damages, because you cannot guarantee if you would receive the amount (same amount) in the future Gratuitous Services Griffiths v Kerkemeyer (1977) When necessary services have been provided gratuitously by a relative or friend, it should now as a general rule be held that the value of the necessary services does not reduce the damages recoverable for negligence causing the incapacity, and the value of such services in general should be calculated by reference to their standard of market cost, and not by the loss suffered by the person who provides them, and the plaintiff did not hold the sum in question on trust for the person who provided the service. 1. The plaintiff suffered injury in a motor accident caused by the defendant. 2. The defendant was the plaintiff's husband. 3. The defendant took care of the plaintiff after the accident. 4. The plaintiff claimed for damages against the defendant for the value of gratuitous services in the future. Kars v Kars (1996) Under the Griffiths v Kerkemeyer principle, a plaintiff who has suffered personal injury caused by the defendant's negligence may recover damages representing the value of necessary service, past and future, provided gratuitously to the plaintiff by a relative or friend.This principle applies where the service are provided to the plaintiff by the defendant tortfeasor The damages are recoverable to compensate the plaintiff for the loss which is evidenced by the need for the services ad it is a matter for the plaintiff whether they are used to recompense the person providing the service. True it is that the value of services provided or to be provided gratuitously to satisfy a need will ordinarily provide a guide in quantifying the damages to be awarded for the loss giving rise to the need, but those damages are general damages which are incapable of precise mathematical calculation and remain at large until qualified. It has been conventional when juries are called upon to assess damages to classify general damages under three heads: economic loss, loss of enjoyment of life and pain and suffering. Economic loss is often said to be the future loss of wages or loss of income but in fact it is for the loss of earning capacity that such damages are awarded.... In the same way the damages which a plaintiff receives for the need for services is compensation for the loss or incapacity giving rise to the need. 1. In 1986, the appellant sustained injury in a car accident. 2. 14 years ago, she also suffered an accident but had surgery at that time and was virtually symptom-free by the time he sustained the car injury. 3. Before the time she got hurt in the car accident, she had a very successful life and she was one step below vice-president. 4. The accident brought about a serious aggravation of the injury she sustained in 1972. 5. Consequently, she was unable to continue her previous career and at the time of trial, worked part-time for a family business. 6. Trial awarded appellant 5% discount in vicissitudes of life. 7. The decision of NSWCA increased the discount to 28%. 8. On appeal by the appellant. 4 points: 1. Useful discussion in the principle of future economic loss assessment 2. Need to look into the plaintiff's earnings between the date of the accident and the date of the trial. 3. Shows the plaintiff 's burden of proof of his loss of the earning capacity, and must be discharged before he is entitled to any financial loss 4. The defendant's may rely on the position to argue that there is no ground to apply for the compensation in terms of the postinjury earning greater than the pre-injury earning, the plaintiff need to provide the actual financial loss for the purpose of the award. 1. The plaintiff was hurt and forced to end his professional career as a rugby profession. 2. He received the verdict for the injury against the three respondents who caused his injury. (two directly, and the other vicariously. 3. The judge refused to order a compensation for loss of earning capacity. 4. Evidence showed that after the injury, the appellant had more time in dealing with his property investment. 5. The increase of time of the investment led him to a substantial increase in earning from property development. 6. The claim for loss of earning capacity was failed. The means that the voluntary provision of services to a plaintiff injured as a result of another's negligence is not to be regarded as relieving the plaintiff of expenses which he or she would otherwise have to bear. That is to say, the voluntary provision of services cannot be regarded as being in reduction of a financial loss sounding in damages. ... Rather, the provision of voluntary services is to be regarded as a benevolence which is prompted by the tires of friendship, or familial concern or duty. If the benevolence is not to be regarded as compensation, the underlying loss or disability giving rise to the need for the services remains to be compensated. There is no reason in principle why a person who is sued by a friend or relative, to whom he has negligently caused injury, should not provide services gratuitously to that person with the intention that the provision of those services should be in addition to and not in diminution of any damages which that person may recover against him. Possibilities and Contingencies: the "before and after" picture Wynn v NSW Insurance Ministerial Corporation (1995) In the assessment of damages for loss of future earning capacity, the court must take into account the contingencies or "vicissitude" of life, that is, "the various possibilities which might otherwise have affected earning capacity, however, "child care" and "domestic help" should not be a consideration for the realization of earning capacity. * Far from the likelihood that the appellant might not continue in employment, the evidence clearly supported the trial judge's inference that the appellant had "a real possibility" of promotion. Once that inference was drawn, the prospect of advancement had to be taken into account and balanced against any possible need to take maternity leave. The trial judge had, to that extent, appropriately fixed a discount of 5%, but he had failed to consider the question whether the appellant's original and aggravated injury would have affected her continued employment to retirement age. As the undisputed evidence established the possibility of degenerative change resulting in reduced earnings or earl retirement it was appropriate that the discount figure (including the possibility of maternity leave) be 12.5%. Observations on contingencies or "vicissitudes". * Outgoings which are deducted for the purpose of calculating economic loss are those necessarily incurred in or in connection with the employment or undertaking by which earning capacity is realised. There is no basis for treating domestic help as necessary for the realisation of earning capacity, indeed the two have no relevant connection. It follows that the cost of child care (one of the various costs of having children) is essentially private or domestic in character and no more to be deducted when calculating loss of earning capacity than are other items of expenditure of personal amenity McCracken v Melbourne Storm Rugby Football Club (2007) The compensation is made for loss of earning capacity, not for loss of earning. * In assessing the damage to be awarded for a loss of amenity of the life, to a plaintiff whose expectation of life has been reduced, and who has been rendered permanently unconsciousness, regard must be had to the fact that the plaintiff is not aware of deprivation. so for the loss of amenity and loss of the life expectation only should be awarded moderately. * In Australia, in assessing the plaintiff 's loss of where the plaintiff 's expectation of life has been shorten, as a result of their injuries, regard should had been to the probably of his working life had he not been injured, and not merely to the probable period left to him as a result of his injuries. * Where there is nothing to suggest that, if the plaintiff has not been injured, his wages will be more than sufficient to provide his own maintainance during his shorten life, it is erroneous to award a sum for a loss of wages, in addition to a large sum calculated to provide for his complete care and maintainance for that period. 1. The plaintiff suffered injury, when he was 17 years old, caused by the defendant's negligence. 2. The injury rendered the plaintiff unconscious and at the date of the trial, he was expected to die within 6 months. 3. The appeal was related to inadequate award of damages. Not over-compensate --- concept of netexpense: necessary living expense, such as for formal clothes, should be deducted from the loss of earning capacity. No perfect compensation scheme, even the plaintiff is compensated more, she would not be better than before. 1. A twenty-year-old girl suffered serious injury in a motor accident. 2. Though she is fully aware of her plight, she may probably spend her most of life in hospital. 3. Before the accident, she was intelligent and healthy and also had a boyfriend with whom she would marry 4. The marriage was canceled as a consequence of the accident. * The basic reason why Mr McCracken's claim for loss of earning capacity must fail is that the evidence established that, during the relevant period, Mr McCracken earned far more than he would have had he not been injured. General Damages Skelton v Collins (1966) In the case of a young man rendered unconscious in an accident and with a very short post-trial expectation of life during which consciousness would not be regained, damages of loss of future earning capacity should be assessed by reference to the plaintiff's pre-accident expectation of life but subject to deduction of the plaintiff's living costs during the years in which he or she will be dead. In a case such as the present, damages for loss of amenities of life and loss of expectation of life should be limited to a modest amount. It may be said that a person who is obliged for the rest of his life to live with his incapacity, fully conscious of the limitations which it imposes upon his enjoyment of life, is entitled to greater compensation than those who, although deprived of his former capacity is spared, by insensibility, from the realization of his loss and the trials and tribulations consequent upon it. An incapacitated plaintiff whose life expectation has not been diminished would be entitled to the full measure of the economic loss arising from his lost or diminished capacity. But an incapacitated plaintiff whose life expectancy has been diminished would not. For the reasons I have given I find myself forced to the conclusion that the recognition which has been accorded to the right of an injured plaintiff to recover damages for "the loss of a measure of prospective happiness" in no way operates to displace or destroy his right to recover damages for economic loss resulting from his diminished earning capacity. Accordingly in my view damages in the present case should have been assessed under this head having regard to the plaintiff's pre-accident expectancy and not only to the expectancy of life remaining to him after the receipt of his injuries. Any assessment should, of course, take into account the vicissitudes and uncertainties of life and also the fact that if the plaintiff had survived for the full period it would have been necessary for him to maintain himself out of his earnings and, no doubt, his expenditure on his own maintenance would have increased as his earning increased. Sharman v Evans (1977) Where, as a result of his or her injuries, the plaintiff will spend substantially the rest of his or her life in hospital (and be entitled to damages for future hospital expenses), a deduction should be made from damages for loss of future earning capacity to take account of saved outside expenses such as board and lodging and work-related outgoings. At the same time, it should be acknowledged that there are inherent difficulties in assessing damages for loss of amenities of life, "perfect" compensation being impossible. Where, as here, a plaintiff suffers a total loss of earning capacity he will not normally continue to incur all of the outgoings necessary for the realization of that capacity which would have been incurred had his capacity been unaffected; items such as the cost of clothing suitable to his particular employment and of transportation to and from work provide examples, no doubt there are others. Compensation for loss of earning capacity is paid only because it is or may be productive of financial loss and to compensate for total loss of earning capacity without making allowance for the cessation of these outgoings is to compensate for a gross loss when it is only the net loss that is in fact suffered. It remains only to say something about damages for loss of the enjoyment and amenities of life. It is in this field that there exists the need to recall what has often been said about fairness, moderation and the undesirability to striving to provide an injured plaintiff with "perfect" compensation. The warning against attempting perfectly to compensate means, in the case of pecuniary loss, no more than the need to make allowance for contingencies, for the vicissitudes of life, compensating for probable rather than for merely speculative detriments. But when a non-pecuniary detriment is in question the injunction against "perfect" compensation means rather more. It cannot refer to the exclusion of all question of punishment of the wrongdoer; the word "compensation" standing on its own would be sufficient to do this; rather is it designed to remind that the maiming of a plaintiff and its consequences cannot wholly be made good by an award of damages and that the recognition of this fact is to be no

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