MLL213 Study Guide - Final Guide: Owen Dixon, Forceps In Childbirth, Structured Settlement
24 May 2018
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OVERVIEW OF TORTS
DEFINITION
A tort is defined as an intentional, wrongful act, other than a breach of contract, negligently
or in circumstances involving strict liability.
The recovery, normally compensation, is entirely dependent on fault. Fault is determined
where failure to act in accordance with normative standards of behaviours occasions an
iju to the plaitiffs iteests.
VICTIM = PLAINTIFF DEFENDANT = TORTFEASER
The objective is to compensate the victim for loss plus normative and punitive objectives.
STANDARD OF PROFF (TORT V CRIMINAL LAW)
Eg. Trespass to land = tort if no damage to the land, but to be actionable as a crime,
there must be damage to the land.
Eg. Standard of proof needs to be on the balance of probabilities (51%) rather than
beyond reasonable doubt.
a) The Standard of Proof in Civil Cases:
• According the Dixon J in Briginshaw v Briginshaw the standard of persuasion is
oe of the easoale satisfatio hih… a, ot ust, e ased o a
pepodeae of poailit,
• Burden of proof is on plaintiff
Topic 1 Damages
Claims by living persons
Four Fundamental principles of compensatory damages awards
Todorovic v Waller (1980)
1. COMPENSATORY OBJECTION
P to be put in the same monetary position as if the injury at not been sustained.
2. ONCE AND FOR ALL RULE
Once the plaintiff has recovered damages for an act, they cannot bring another claim
based on the same facts
find more resources at oneclass.com
find more resources at oneclass.com
3. LUMP SUM AWARDS AND STRUCTURED SETTLEMENTS
Now, due to reforms, the courts can approve an agreement to settle by a structured
settlement (periodic payments rather than a lump sum)
• Willett v Futcher affied the ule that hee as a esult of the totfeases
conduct, the claimant is incapable of managing his or her financial affairs; the
award should include an amount to cover professional costs of the administrator
managing the fund established for the person.
S28N Wrongs Act
No tax consequences + advantageous financial management + future
reassessment
Limitations: no power to order parties to enter into such + only applies to
settlements
• This requires the court to make predicatios aout the plaitiffs futue health,
employment, etc.
4. ASSESSING DAMAGES FOR PAST AND FUTURE OR POTENTIAL EVENTS
• Before a court can assess damages for future economic loss it must determine
which if any future of potential events in the life of the injured claimant will be
productive of such loss.
• Establishing allegations of past events and their present consequences can be
achieved by way of witness and expert evidence.
• Eg. If there is a 70% chance that a psychiatric illness after ten years, the plaintiff
would receive full damages for ten years and 70% of damages for the years valid
after.
Fetter v Beal (1701)
• Plaintiff sued in battery claiming the defendant broke his skill. Defendant was found liable
and ordered to pay 11 pouds damages.
• Eight years later, plaintiff brought second action because portion of skull had to be removed.
Defendant successfully demurred.
Gilchrist v The Estate of the Late Sara Alexander Taylor (2004)
• Sustained injury from being hit on the head with a golf ball in 1987
• Operated on and, thus, left with neurological problems, suffered epileptic problems
• Awarded damages of 2.5 million in 2002
• Died in 2003 and money was given to family due to once and for all rule
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
A tort is defined as an intentional, wrongful act, other than a breach of contract, negligently or in circumstances involving strict liability. The recovery, normally compensation, is entirely dependent on fault. Fault is determined where failure to act in accordance with normative standards of behaviours occasions an i(cid:374)ju(cid:396)(cid:455) to the plai(cid:374)tiff(cid:859)s i(cid:374)te(cid:396)ests. The objective is to compensate the victim for loss plus normative and punitive objectives. Trespass to land = tort if no damage to the land, but to be actionable as a crime, there must be damage to the land. Four fundamental principles of compensatory damages awards: compensatory objection. P to be put in the same monetary position as if the injury at not been sustained: once and for all rule. Once the plaintiff has recovered damages for an act, they cannot bring another claim based on the same facts. Plaintiff sued in battery claiming the defendant broke his skill.
