TORTS - Lecture 11

Negligence – Remedies (or

“Damages”)

Lecturer: Greg Young

greg.young@lawyer.com
 RECOVERABLE HEADS OF
LOSS: PERSONAL INJURY
• Windeyer J in: Teubner v Humble (1963) 108 CLR
491 (P was head photographer for Adelaide newspaper “The News”; 12/5/60 a violent storm occurred
and P sent to take photos; P took a taxi & told the driver to stop near the Hindmarsh Bridge so he could take
photos of a sheet of water and the effect on cars/traffic; after ¼ hr P was returning to the taxi when the D’s
car struck him)
– 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
 DAMAGES: PERSONAL
INJURY
• SPECIAL DAMAGES
– out of pocket expenses
– loss of income up to the
date of verdict less any
deductions* (This may be
included in loss of earning
capacity)
• 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)
 FUTURE (HOSPITAL AND
MEDICAL/CARE) EXPENSES
• P is entitled to recover the future cost of
hospital, medical, nursing and home care.
• P is entitled to recovery of such cost even
where the care (nursing/home care) is
provided gratuitously by a spouse or relative
Griffiths v Kerkemeyer (1977) 139 CLR 161
• The damages for such expenses are
calculated by reference to the market cost of
the services
 LOSS OF EARNING
CAPACITY
• The onus is on P to provide evidence of real
possibility of the potential/capacity yet unexploited
that would have been exploited in the future but for
the injury suffered (Mann v Ellborn (1973) 8 SASR
298 ( police officer who was aspiring to be a lawyer)
• Where D maintains that P retains the capacity to
earn, the onus is on D to provide the relevant
evidence and the range of work open to P
 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 )
 ASSESSMENT OF NON-
ECONOMIC LOSS
• There is no acceptable criteria for assessing what is fair
compensation for a particular non-economic loss
• (Sharman v Evans – P at age 20 yrs became a quad due to MVA; lost power
of speech, ltd use of arms, developed epilepsy...):
– Her ability to breathe, eat, speak, move, control her
excretions, have social and sexual intercourse, bear or
look after children is either greatly impaired or
destroyed. She also went through the ordeal of
releasing the young man from his promise to marry
her…The estimate in respect of pain and suffering is
seldom adequate( Murphy J)
– She has suffered and will continue to suffer for the rest
of her life in her left shoulder, another of her few
remaining sensory areas…Pain and suffering and loss
of amenities of life is a head of damages which is
particularly difficult to assess (Gibbs and Stephen JJ)
 Civil Liability Act 2002
Part 2 Personal Injury Damages
• Received assent on 18 June 2002
• Section 11A:
(1) does not apply to claims excluded by
Section 3B (eg. Damages for dust diseases,
use of tobacco products, workers’
compensation…)
(2) Part 2 applies regardless of whether the
claim is brought in tort, contract, statute or
otherwise
(3) A court cannot award damages, or
interest on damages, contrary to Part 2.
 Civil Liability Act 2002
• Pt 2 Non-economic loss:

- No damages for non-economic loss unless assessed at

15% of a most extreme case (eg. 15% = 1% or $3,500,
16% = 1.5% or $5,250, …26% = 8% or $28,000, …33%
= $115,500…100% = $350,000): Section 16(1) & (3)

- Maximum non-economic loss = $350,000: Section 16(2)

- Maximum for non-economic loss indexed: Section 17

- Courts/parties may refer to other awards of non-

economic loss in earlier court decisions: Section 17A
 Civil Liability Act 2002
Exemplary, punitive & aggravated damages:

• A court cannot award exemplary,

punitive or aggravated damages in an
action for personal injury resulting from
negligence : s21
 Civil Liability Act 2002
• Pre-judgment Interest:
- No interest payable on damages for non-
economic loss or gratuitous attendant care:
s18(1)
- If interest is awarded (eg. Past economic loss),
the “relevant interest rate” is the
Commonwealth Govt 10-year benchmark bond
rate: s18(4)
 Civil Liability Act 2002
• Economic Loss:
- Maximum for gross loss loss of earnings = 3 times
average weekly earnings: s12
- 5% actuarial tables for future economic loss: s14
• Gratuitous Attendant Care:
- No damages awarded if services provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months: s15(3)
Geaghan v D’Aubert [2002] NSWCA 260
Negligence - Remedies

INJURY TO RELATIONAL
INTERESTS
 THE SCOPE OF THE
ACTIONS
Death
Dependents may sue for loss
actual or expected benefits

Loss of services Loss of consortium

Parent/master may sue for An action that permitted
wrongful deprivation of the the husband to sue
Services of a child/servant for wrongful deprivation of the
wife’s consortium
 COMMON LAW AND THE
SURVIVAL OF ACTIONS
• In the event of death from a wrongful act there
are two potential defendants:
– the estate; and
– dependants
• Traditionally in Common Law, a personal
action ‘died’ with the victim
 The Estate: Lord Campbell’s
Act (1846)
• The Act modified the Common Law rule in
England.
– The effect of the legislation was to give to the
estate the action which the deceased would
have had she or he survived
• Australian States and Territories have
adopted similar statutes with modifications
SURVIVAL OF ACTIONS: NSW
• Law Reform (Miscellaneous Provisions) Act
(NSW) 1944 Part 2 Survival of causes of Action
After Death
– Subject to the provisions of this section, on death of
any person …all causes of action subsisting against
or vested in him shall survive against, or, as the case
may be, for the benefit of, his estate;...
 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 • NON-ALLOWABLE

– Needs created; – loss of earning
reasonable expenses capacity
incurred before death – Non-economic loss
– Reasonable funeral
expenses
 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
Reid’s will; action taken by Zoanetti’s 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
 LOSS OF REASONABLE EXPECTATION
OF FINANCIAL BENEFIT
• The benefit is a ‘chance’ that is lost. P must therefore
establish such ‘chance’ in accordance with the principles of
reasonable certainty. (Taff Vale Railway Co v Jenkins
(1913)AC 1, 7
– All that is necessary is that a reasonable expectation of pecuniary
benefit should be entertained by the person who sues. It is quite
true that the existence of this expectation is an inference of fact
from which the inference can be reasonably drawn...
• 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 D’s neg driving; Ps were husband & 2 children; inter alia, claim for lost
housekeeping etc.)
– The claim: ‘loss of the deceased’s domestic capacity being
the value of services such as child care, cooking, washing,
ironing and cleaning’
• The definition of ‘services’ is broad:
– ‘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 P’s 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 wife’s 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
 LOSS OF SERVICES:
SERVANTS
• The action was traditionally restricted to menial services
offered by the servant. In Australia there is no restriction
based on the types of services as such
• Heads of damage:
– Loss of profits
– Payment to the servant of sick-pay or pension
– Out of pocket expenses such as Workers Comp or medical
expenses.
• 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)
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Facts
• Dec ’67 – Mrs M underwent an appendectomy at
Balmain Hospital, Sydney as a 15 year old. Her
right ovary was filled with a blood clot and
removed. However, her left and right fallopian
tubes were unaffected.
• 1984 – Mr & Mrs M married
• 1985 & 88 – Two daughters were born
• Nov ’91- Mrs M 1st saw Dr C (gynaecologist),
who formed the view that the right ovary and
fallopian tube were removed in 1967
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Facts
• Mar ‘92 – Dr C performed a laparoscopic tubal ligation at
Redland Hospital, Brisbane. He found “…No right tube or
ovary visible. Consistent with patient’s history of right
salpingo-oophorectomy...”
- In fact, the right fallopian tube was obscured by bowel
adhesions so only the left fallopian tube was clipped.
- Dr C did not see Mrs M again.
• Nov ’96 – Mrs M fell pregnant at age 44 years.
• May ‘97 – Healthy son, Jordan, was born
- Experts representatives of the parties were present at
the birth and found the right fallopian tube was present
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Facts
• Sept ‘97 – Mrs M underwent an hysterosalpingogram, a
procedure in which dye is inserted into the uterus and
the results are observed on x-ray.
- The results showed the right fallopian tube was patent.
- Consensus of medical opinion was that conception
occurred as an ovum transmigrated from the left ovary to
the right fallopian tube
• Trial judge (Holmes J) found Dr C was negligent in failing
to adequately inform Mrs M of the possibility that the
procedure would fail so as to give her the option of
considering further investigation by way of
hysterosalpingogram
 Trial Judge’s Award (unchallenged on
appeal)
Mrs M’s Damages:
Pain & Suffering and loss of amenities $30,000.00

Interest on $20,000 for 3.5 yrs @ 2% 1,500.00

Past eco loss 3,003.00

Interest for 3.5 yrs @ 5% 525.52

Future eco loss 10,000.00

Past Griffiths v Kerkemeyer 13,300.00

Interest for 3 yrs @ 2% 851.12

Future G v K 28,476.00

Past special damages 15,473.06

Interest on special damages 543.69

$103,672.39
Trial Judge’s Award (unchallenged on
appeal)
Mr M’s Damages:

At paragraph 15, Gleeson CJ noted that Holmes J applied the

“blessing argument” to reduce the claim for loss of consortium but no
reduction was made for the subject of the appeal.

Loss of consortium (not available in $3,000.00

NSW)
$3,000.00
Trial Judge’s Award (subject of appeal)
Mrs & Mr M’s Damages:
At paragraph 20, Gleeson CJ noted Holmes J accepted a schedule prepared by
Mr M setting out past and anticipated costs of raising Jordan to age 18 years.
“For the eary years, about half of the estimated expenditure was on food. In the
later years, that proportion dropped to about one third. Other items included
clothing, medical and pharmaceutical expenses, child care, travelling to and
from school, birthday and Christmas presents each year, and entertainment... It
included items of reasonable discretionary expenditure...”

All Justices of the High Court considered the sums claimed by Mr M were
relatively low but Hayne and Heydon JJ in separate judgments posed the
question at paragraphs 208 and 306 respectively whether the wealthy should
awarded higher compensation.

Past cost of raising Jordan $17,698.80

Interest for 3 yrs @ 5% 2,655.00

Future costs of raising Jordan to age 18 84,895.53

yrs
$105,249.33
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Appeal – Limited to the costs of raising and
maintaining Jordan
• Qld Court of Appeal – Dr C’s appeal dismissed
(McMurdo P and Davies JA, Thomas JA
dissenting)
• High Court of Australia – Dr C’s appeal
dismissed (majority of McHugh & Gummow JJ,
Kirby J and Callinan J, with Gleeson CJ, Hayne
J and Heydon J dissenting)
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
High Court – Summary of dissenting views
• Gleeson CJ – claim involves moral, natural and legal obligations so there is no
clear reason why such a claim should cease at 18 years
- [para 38] “…It is a human relationship, regarded by domestic law and by international
standards as fundamental to society. To seek to assign an economic value to the relationship,
either positive or negative, in the ordinary case, is neither reasonable nor possible. ”

• Hayne J – [para 258] “...what is seen to be the desirable paradigm of family

relationships in which the child and parent are of mutual support of each other. In that sense, and
only in that sense, the law might be seen as concluding that every child is a blessing.”
- [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...”
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
High Court – Summary of dissenting views
• Gleeson CJ – claim involves moral, natural and legal obligations so there is no
clear reason why such a claim should cease at 18 years
- [para 38] “…It is a human relationship, regarded by domestic law and by international
standards as fundamental to society. To seek to assign an economic value to the relationship,
either positive or negative, in the ordinary case, is neither reasonable nor possible. ”

• Hayne J – [para 258] “...what is seen to be the desirable paradigm of family

relationships in which the child and parent are of mutual support of each other. In that sense, and
only in that sense, the law might be seen as concluding that every child is a blessing.”
- [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...”
 Cattanach v Melchior [2003] HCA
38 (16 July 2003)
High Court – Summary of the majority
• McHugh & Gummow JJ – [para 68] “The unplanned child is not the
harm for which recompense is sought…it is the burden of the legal and moral
responsibilities which arise by reason of the birth of the child that is in contention…
What was wrongful in this case was not the birth of the third child to Mr & Mrs M but
the negligence of Dr C. ”
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.”
Callinan J – [para 295] “One strong contrary argument against the
appellants which I accept, is that a holding for them here would be tantamount to the
conferral of a new form of immunity upon doctors and hospital authorities.”
 CIVIL LIABILITY AMENDMENT
ACT 2003
Part 11 - Damages for the birth of a child

Section 70 Application of Part

(1) This Part applies to any claim for damages in civil
proceedings for the birth of a child, regardless of whether
that claim is made in tort, in contract, under statute or
otherwise.
(2) This Part does not apply to any claim for damages by a
child in civil proceedings for personal injury (within the
meaning of Part 1A) sustained by the child pre-natally or
during birth.
(3) This Part does not apply to civil liability that is excluded
from the operation of this Part by section 3B but, despite
that section, does apply to liability of the kind referred to
in section 3B (1) (a).
 CIVIL LIABILITY AMENDMENT
ACT 2003
• 71 Limitation of the award of damages for the birth
of a child
(1) In any proceedings involving a claim for the birth of a
child to which this Part applies, the court cannot award
damages for economic loss for:
(a) the costs associated with rearing or maintaining the
child that the claimant has incurred or will incur in the
future, or
(b) any loss of earnings by the claimant while the
claimant rears or maintains the child.
(2) Subsection (1) (a) does not preclude the recovery of
any additional costs associated with rearing or
maintaining a child who suffers from a disability that
arise by reason of the disability.