Common Law and Statute - Law Assignment Help

Assignment Task

DAMAGES IN TORT

Common Law and Statute

The law set out below forms part of the common law. These common law rules will prevail unless they are expressly or by implication abrogated by statute law.  The relevant statute law is also stated.

Given that injury to a person often occurs in specific contexts such as motor vehicle or work accidents it is a prime importance that attention be paid to the legislation that governs the award of damages in these areas.  Such legislation also alters some substantive law rules.

Given also that much injury arises from negligent acts as opposed to intentional acts the provisions of the Civil Liability Act 2002 (NSW) will apply and will modify the common law.

General Principles

Damages that are awarded in a civil action whether it is in contract or in tort are normally compensatory (Compensatory Damages).   However, in rare cases damages can be awarded because of the aggravated nature of the defendant's breach (Aggravated Damages) or to punish the defendant for his or her conduct (Exemplary Damages)

A plaintiff must plead and establish the necessary elements of a cause of action and then set about pleading and proving a case for the remedy requested.  That is not only must the cause of action be proved but the loss and the amount of the loss that flows from that breach must be proved.   Proving the cause of action normally only establishes the right to damages.

The role of damages whether in tort or contract is to place a successful plaintiff in the position it would have occupied had the wrong not been committed.  This is so far as a payment of money can achieve this aim; Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25 at 39.

In tort this means putting the plaintiff back to the position they would have been in if the tort had not been committed.

The salient features of the Act with respect to damages for personal injury are:

• Damages for economic loss are limited to three times gross average weekly earnings
• A 5% discount rate applies unless adjusted by regulation.
• A claimant must satisfy the court that the assumptions used to calculate future economic loss represent the most likely outcome but for the injury.  Such damages are to be reduced for the probability the loss would have occurred regardless of the injury.
• Damages for non-economic loss are only to be awarded where the injury is at least 15 % of a most extreme case.  A most extreme case is awarded $350,000 (indexed).
• If the plaintiff is between 15% and 34% of a most extreme case then non-economic loss is determined on a sliding scale so that 15% amounts to 1% of the maximum amount, 20% to 3.5%, 25% to 6.5%, 30% to 23% and 34% = 34%.
• Damages for gratuitous care are available only where; (1) there is a reasonable need for the services; (2) the need arises solely because of the injury; (3) the services would not have been provided but for the injury; (4) the services will be provided for at least 6 hours per for at least 6 months.  This means both times must be satisfied; Geaghan v D'Aubert [2002] NSWCA 260 at [38].  If provided for greater than 40 hours per week then at average weekly earnings for all NSW employees if less than for 40 hours then the hourly rate must not exceed one fortieth of average weekly earnings for all NSW employees.
• Interest is not payable on past non-economic loss or gratuitous care.
• Exemplary and aggravated damages are not available.
• Special provision is made for contribution between tortfeasors

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