LAW 1507 Lecture Notes - Lecture 9: Punitive Damages, Bmw M54, Wilfred Fullagar
23 May 2018
School
Department
Course
Professor
Damages
Process
D will be liable or damages caused by her actions. Firstly, special damages must be pleaded
and proved by A. Damages for pain and suffering or loss of amenity will not be awarded when
the plaintiff is unconscious (skelton). His earning capacity will need to be considered. Any
probable increase in earning capacity will be considered. Life expectancy is not taken into
account (sharman v Evans) May be awarded future medical expenses which take into account
his shortened life expectancy. See for scaffold, but do not copy: http://aulss.org/wp-
content/uploads/2014/11/Torts-Take-Home-Exam-2014-82.pdf
Summary
• Damages are generally assessed on a once and for all basis
Damages cover pecuniary and non-pecuniary loss
• Economic (pecuniary)
o Lost earnings
o Profits
o Losses incurred in restoring damaged property
o Replacement of damaged property
o Expenses incurred in mitigating loss
o Rehabilitation costs
o Domestic help
o Medical costs
This is the order to answer a PQ-
1. Identify special damages (up until time of trial)
2. General damages
under Other heads of damages (such as loss of life expectancy- loss of amenities of life- loss of earning
capacity- pain and suffering) (hospital/ special food/ alter house)
3. Punitive damages- rare
• Be aware of s54 (Damages for loss of earning capacity – cap)
• Once this is determined then must consider s55: Award to be reduced by 5% (cross reference
s3)
• Also consider whether or not there are any gratuitous services.
• If provided by the plaintiff to a third party – no award.
• If provided to the plaintiff, must have a s58 relationship
find more resources at oneclass.com
find more resources at oneclass.com
Special Damages (pre-trial)
Paff v Speed (1961) 105 CLR 549, per Fullagar J at 558 (cited with approval in recent decision
of CSR v Eddy (2005) 222 ALR 1, [90] )
(1) that they are assessed only up to the date of verdict, and
(2) that they are capable of precise arithmetical calculation or at least of being estimated
with a close approximation to accuracy
Losses actually suffered, expenses actually incurred.
General Damages (post trial)
Non-economic loss
s3 Civil Liability Act 1936 (SA) :
non-economic loss means—
(a) pain and suffering; or
(b) loss of amenities of life; or
(c) loss of expectation of life; or
(d) disfigurement;
Paff v Speed (1961) 105 CLR 549, per Fullagar J at 559 (cited with approval in recent decision
of CSR v Eddy (2005) 222 ALR 1, [90]
Geeal daages …ae of thei ey atue, iapale of atheatial alulatio … thee
is a wide discretion in assessing them and may be assessed not with reference to any limited
peiod, ut ith efeee to a idefiite futue.
Todorovic v Waller (1981) 150 CLR 402, per Gibbs CJ and Wilson J at 412
try to work out what loss is going to be suffered into the future- compensatory in nature.
Although the ai of the out i aadig daages is to ake good to the plaitiff,
so far as money can do, the loss which he has suffered, it is obvious that it is impossible to
assess damages for pain and suffering and loss of amenities of life by any process of
arithmetical calculation. It may be less obvious, but is no less certain, that the assessment of
damages for future pecuniary loss resulting from personal injuries can never be a mere
matter of mathematis.
1. A plaintiff who has been injured by the negligence of the defendant should be
awarded such a sum of money as will, as nearly as possible, put him in the same
position as if he had not sustained the injuries
2. Damages for one cause of action must be recovered once and forever, and (in the
absence of any statutory exception) must be awarded as a lump sum
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
If provided by the plaintiff to a third party no award. If provided to the plaintiff, must have a s58 relationship. D will be liable or damages caused by her actions. Firstly, special damages must be pleaded and proved by a. Damages for pain and suffering or loss of amenity will not be awarded when the plaintiff is unconscious (skelton). His earning capacity will need to be considered. Any probable increase in earning capacity will be considered. Life expectancy is not taken into account (sharman v evans) may be awarded future medical expenses which take into account his shortened life expectancy. See for scaffold, but do not copy: http://aulss. org/wp- content/uploads/2014/11/torts-take-home-exam-2014-82. pdf. Summary: damages are generally assessed on a once and for all basis. Damages cover pecuniary and non-pecuniary loss: economic (pecuniary, lost earnings, profits, losses incurred in restoring damaged property, replacement of damaged property, expenses incurred in mitigating loss, rehabilitation costs, domestic help, medical costs.
