Remedies

Remedies: Compensation - General Principles

  • Contributory Negligence: A partial defense reducing the defendant's liability; focuses on the plaintiff's pre-accident behavior.
    • Asks if the plaintiff took appropriate care for their own safety.
    • Asks if their response to foreseeable risk was reasonable.
    • Determines if the plaintiff's actions contributed to the accident or the extent of the harm suffered.
    • It's crucial to differentiate between pre- and post-accident behavior; the defense applies only to pre-accident carelessness.
    • Ipp JA in Ackland v Commonwealth of Australia [2007] Aust Torts Reports 81-916 emphasized "blameworthiness" regarding behavior leading up to the accident.
  • Section 9, Law Reform (Miscellaneous Provisions) Act 1965 (NSW):
    • Deals with the apportionment of liability in cases of contributory negligence.
    • A claim isn't defeated due to contributory negligence.
    • Damages are reduced to the extent the court deems just and equitable, considering the claimant's share of responsibility.
  • Civil Liability Act 2002 (NSW):
    • Section 5S: Contributory negligence can defeat a claim entirely if the court deems a 100% reduction just and equitable.
    • Section 5R: Standard of contributory negligence.
      • Principles determining negligence also apply to determining contributory negligence.
      • The standard of care is that of a reasonable person in the plaintiff's position.
      • The determination is based on what the person knew or ought to have known at the time.

Apportionment: Multiple Wrongdoers

  • Concurrent Wrongdoers:
    • Those causing the same indivisible harm.
      • Joint Wrongdoers: Performing the same wrongful act, including those acting in concert or vicariously liable.
      • Several Concurrent Wrongdoers: Separate acts combine to cause the same indivisible harm.
  • Solidary Liability:
    • Joint and severally liable; advantageous to the plaintiff.
    • The plaintiff can sue any or all wrongdoers, each liable for the entire loss.
    • The plaintiff can bring only one action against any or all wrongdoers.
    • Under common law, defendants originally lacked the right to seek contribution, but the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (s 5) grants this right.
    • Solidary liability applies to personal injury damages but not economic loss or property damage.
  • Proportionate Liability:
    • Advantageous to the defendant; each defendant is only liable for their portion of the loss.
    • Civil Liability Act 2002 (NSW) pt 4 requires:
      • An apportionable claim: economic loss and property damage (excluding personal injury).
      • A concurrent wrongdoer: causing the same indivisible harm.
  • Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Section 5:
    • Addresses proceedings against and contribution between joint and several tort-feasors.
    • Judgment against one tort-feasor doesn't bar action against others.
    • A tort-feasor can recover contribution from any other liable tort-feasor.
    • The contribution amount is just and equitable, considering each person’s responsibility; the court can exempt or fully indemnify a person.
  • Civil Liability Act 2002 (NSW) PART 4:
    • Deals with proportionate liability.
    • Includes sections on application of the Part, concurrent wrongdoers, apportionable claims, the duty to inform the plaintiff, contribution, subsequent actions, joining non-parties, and the Part's overall application.
  • Civil Liability Act 2002 (NSW) Section 35:
    • Proportionate liability for apportionable claims.
    • A defendant's liability is limited to their proportion of responsibility for the damage or loss.
    • The court can only give judgment against the defendant for that amount.
  • Civil Liability Act 2002 (NSW) Section 34:
    • Application of Part defines apportionable claims as:
      • Claims for economic loss or property damage in contract, tort, or otherwise for failure to take reasonable care, excluding personal injury.
      • Claims for economic loss or property damage under the Fair Trading Act or Australian Consumer Law.
    • A single apportionable claim exists even with multiple causes of action.
    • A concurrent wrongdoer is one of two or more persons whose acts/omissions caused the damage, independently or jointly.
  • Civil Liability Act 2002 (NSW) Section 34A:
    • Certain concurrent wrongdoers don't benefit from apportionment.
    • This applies if the wrongdoer intended to cause or fraudulently caused the economic loss or damage, or if their liability is excluded by section 3B.
    • The liability of excluded concurrent wrongdoers is determined by other relevant legal rules.
    • Other concurrent wrongdoers' liability is determined according to this Part.
  • Hunt & Hunt Lawyers v Mitchell Morgan Nominees (2013) 247 CLR 613:
    • A fraudster obtained funds by forging signatures on mortgage documents.
    • The law firm was found to have breached its duty of care.
    • The High Court held that a 'concurrent wrongdoer' includes those whose actions caused the plaintiff's claimed damage, whether jointly or independently.
    • There is no express limitation on the nature of the claim, other than the requirement that the acts/omissions of all concurrent wrongdoers caused the damage.

Assessment of Compensation: Basic Principles

  • Temporal Considerations:
    • Trials often occur long after the dispute arises.
    • This leads to questions about the timing of compensation assessment.
    • Inlcudes the lump sum rule and the 'once and for all' rule.
    • The date of assessment varies by cause of action:
      • Breach of contract: Damages are assessed at the date of the breach.
      • Intentional wrongdoing and negligence: Damages are assessed at the time the award is made.
    • The relevance of inflation must also be considered.
  • Present Value of Future Losses:
    • Money today is worth more than the same amount in the future.
    • Courts adjust future losses to prevent over-compensation.
    • This aligns with compensatory damages principles.
    • Legislative Framework:
      • Civil Liability Act 2002 (NSW) prescribes a 5% discount rate.
      • This evolved from Todorovic v Waller (3%).
      • Reflects a conservative policy approach.
    • Medical Expense Scenario:
      • Future cost: 100,000100,000 in 10 years.
      • Present Value calculation using 5% discount rate.
  • Future Loss Example:
    • 200200 per week for 40 years.
    • Assuming 3%3\% discount rate:
      • $1\$1 per week for 40 years calculates to $1,224.20\$1,224.20
      • $1,224.20∗$200=$244,840\$1,224.20 * \$200 = \$244,840
  • Taxation of Damages:
    • Personal injury compensation (including lump sum payments for loss of earning capacity) is generally non-assessable income.
    • Lost income/profits damages are taxable and require