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Three ways in which personal injury can give rise to damages: destruction or reduction (of existing mental or physical capacity) new needs (which did not exist prior to the injury) production of pain (and suffering) These categories include: loss of earning capacity the cost of medical and nursing care (past and future) physical pain mental anguish
GENERAL DAMAGES
future medical and hospital expenses future economic loss loss of amenities and enjoyment of life Pain and suffering loss of expectation of life
OUT-OF-POCKET EXPENSES
In general this includes all expenses incurred by the plaintiff on account of the breach up to the date of verdict (Paff v Speed (1961) 105 CLR 549, 558-9)
medical expenses surgical fees Transportation Special needs etc
LOSS OF INCOME
[See ss.12 & 14 Civil Liability Act]
Loss of past & future superannuation Nett loss of pay plus overtime:
less any savings to be made as a result of the injury (eg cost of transport to work) less any boarding and lodging savings eg for being in hospital (Sharman v Evans (1977) 138 CLR 563 less allowance for income tax deductions (Cullen v Trappell (1980) 146 CLR 1)
NON-ECONOMIC LOSS
Non-economic loss is traditionally claimed under three main heads of damage:
Pain and suffering loss of amenities loss of expectation of life
"is not the prospect of length of days, but the prospect of a predominantly happy life . . . The ups and downs of life, its pains and sorrows as well as its joys and pleasures . . . have to be allowed for in the estimate" Benham v. Gambling (1941) AC 157: (p 166 )
Negligence - Remedies
INJURY TO RELATIONAL INTERESTS
Loss of services
Parent/master may sue for wrongful deprivation of the Services of a child/servant
Loss of consortium
An action that permitted the husband to sue for wrongful deprivation of the wifes consortium
Australian States and Territories have adopted similar statutes with modifications
QUALIFICATIONS
Section 2(2) of the Law Reform (Miscellaneous Provisions) Act (NSW) 1944 does not allow for recovery of the following types of damages:
exemplary damages loss of earning capacity/loss of future probable earnings loss of expectation of life pain and suffering
Incidental losses or gains except for funeral expenses will not affect the quantum of damages
HEADS OF DAMAGES
ALLOWABLE DAMAGES Needs created; reasonable expenses incurred before death Reasonable funeral expenses
NON-ALLOWABLE loss of earning capacity Non-economic loss
DEPENDENTS CLAIMS
Compensation to Relatives Act 1897 (NSW)
3(1) Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act , neglect or default is such as would ( if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof , then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages
PLAINTIFF: STANDING
Compensation to Relatives Act 1897 (NSW) S4:
spouses parents (including those in loco parentis) de factos Compensation to Relatives Act (De facto Relationships )Amendment Act 1984 children (including step children) siblings (half and full)
SCOPE OF LOSS
Public Trustee v Zoanetti (1945) 70 CLR 266
(Zoanetti unlawfully killed by Reid (deceased); Public Trustee was executor of Reids will; action taken by Zoanettis widow against Pub Trustee as legal personal representative of Reid)
The basis for the action is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for pecuniary loss What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased (Dixon J , 279)
HEADS OF DAMAGES
Loss of economic support/loss of reasonable expectation of financial benefit [see Luntz on Damages for a formula used to assess loss of economic support] Loss of domestic services
It may be immaterial that the deceased was unemployed prior to his/her death In the case of a young child, there has to be evidence sufficient to establish the potential to provide the benefit (McDonald v Hillier [1967] WAR 65) In circumstances where maintenance obligations are transferred to a third party this may not necessarily preclude a claim because of future contingencies (Thomson v Mandler [1976] 2 NSWLR 307
DOMESTIC SERVICES
Nguyen v Nguyen (1990) CLR 245 (Deceased wife/mother killed
due to Ds neg driving; Ps were husband & 2 children; inter alia, claim for lost housekeeping etc.)
The claim: loss of the deceaseds domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning There is no reason why services in this context should be given an unduly narrow construction, as if a wife is no more than a house keeper Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen) Where the services are likely to to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serve to reduce the compensation to which the plaintiff will be entitled because the Ps loss is thereby directly reduced ( Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen)
LOSS OF CONSORTIUM
The traditional common position permitted a husband to maintain an action under three heads for loss of consortium (actio per quod consortium amisit)
Loss of the wifes company including sexual companionship Loss of her domestic services Medical and other expenses incurred as a result of the injury to the wife
In Qld & SA the action is available to both spouses; in NSW, Tas and WA, the action has been abolished
LOSS OF SERVICES
Traditionally the common law allowed a cause of action (actio per quod servitium amisit) for the loss of services of:
Children Servants
While the action for loss of services in the case of the child is rare today, action for loss of services from a servant remain a feature of the common law
The Motor Accidents Comp. Act 1999 excludes compensation for loss of services s 142 The Employees Liability Act 1991 excludes against employees by employers P cannot claim for the death of a servant (Sawn v Williams)
$3,000.00
$3,000.00
- [para 261] ...the law should not permit the commodification of the child... Heydon J [para 356] Human life is invaluable in the sense that it is incapable of
valuation. It has no financial worth which is capable of estimation... To calculate them in money terms and then permit their recovery in relation to the performance of the duty is to engage in an activity lacking any meaningful correspondence with the duty...
- [para 261] ...the law should not permit the commodification of the child... Heydon J [para 356] Human life is invaluable in the sense that it is incapable of
valuation. It has no financial worth which is capable of estimation... To calculate them in money terms and then permit their recovery in relation to the performance of the duty is to engage in an activity lacking any meaningful correspondence with the duty...
Kirby J [para 144] ...for a very long time judges and juries have been
obliged to put money values on equally nebulous items such as pain and suffering and loss of reputation. Calculation of the cost of rearing a child is, by comparison, relatively straightforward.
- [para 145] The notion that a child might be hurt emotionally following the later
discovery that parents had sought sterilisation and had gone to court... Is unconvincing... In the real world, cases of this kind are about who must bear the economic costs of the upkeep of the child. Money, not love or the preservation of the family unit, is what is in issue.