LAW OF TORTS. WEEKEND LECTURE 2B G reg Young Contact: firstname.lastname@example.org NEGLIGENCE Defences Remedies – Damages Personal Injury/Death DEFAMATION NUISANCE. DEFENCES TO ACTIONS IN NEGLIGENCE. COMMON LAW Contributory negligence Voluntary assumption of risk Illegality CIVIL LIABILITY ACT
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WEEKEND LECTURE 2B
Greg YoungContact: email@example.com
NEGLIGENCEDefencesRemedies – Damages Personal Injury/Death
CIVIL LIABILITY ACT
- ss5R to T: Contributory Negligence
- He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he admitted that he was beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle which was turning over.
- Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml.
- Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time.
- Mr Berryman then drove, Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time.
- Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then."
- He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident.
- Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking.
- Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. She too was seriously affected by alcohol, and the blood alcohol reading, some hours later, was 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am.
- Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend."
- By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken.
- Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident.
“A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.
Assumption of Risk
Facts - Three people went to the beach that afternoon, the plaintiff and his two companions.
- The conditions were benign; P argued the benign conditions hid a danger.
- P and his two companions (Mr Wilson & Ms Galvin) went into the water between the flags, and that was a strongly contested issue at the trial.
- Mr Wilson, went in first. He was wading out when he kicked something and it was the edge of a sandbar – a sharp sand wall – when he was about waist-deep. He did not see it before that.
- Ms Galvin went into the water and stumbled into a level change, a variation in the water depth. She did not see that before she encountered it.
- P’s evidence was that he went into the water to about waist-deep or a little higher, when a wave came towards him. He dived – a “flat dive” – into the wave, and that is all he recalled until he realised that he was severely injured. He saw nothing.
- So, to that extent, there was a condition in the water which was not obvious to those three people at least.
Facts - D’s case was that by reason of drink and taking ecstasy the night before, P was reckless and was outside the flags
- The lifeguard’s (Mr Nightingale) evidence was that he patrolled the beach. He could not say what had occurred with respect flag placement between 6 am and 10 am. From 10 until the afternoon when the accident occurred, the flags had not been moved, the conditions on the beach had not changed. He patrolled the beach and observed conditions in the water from his outlook post on the north end at the beach.
- Mr Nightingale gave evidence that he could tell whether the water was shallow or deep, where there were sandbars and where there were not by the colouration of the water (ie. Sandbar is “yellowy” and deeper water is “darker green”).
- The flags would be moved if conditions required it. The determination of whether conditions required it was made by the lifeguards on duty at the time. Mr Nightingale’s evidence was that he both patrolled either on foot, an all-terrain vehicle, or observed from his position at the lookout post.
Facts– Nobody asked Mr Nightingale whether there was any safer place to put the flags.
- Suffering a spinal injury in surfing was reasonably foreseeable. There was evidence of that inasmuch as the surf lifesaving club kept equipment to deal with spinal injuries.
- Damages had been agreed.
- The jury found contributory negligence of 25 per cent (ie. presumably, diving under a very small wave) and the effect of that was to reduce the agreed damages to a judgment figure of $3.75 million.
(a) on the balance of probabilities, the conduct constitutes a “serious offence”, and
(b) that conduct contributed materially to the risk of death, injury or damage.
ASSESSMENT OF DAMAGES: PERSONAL INJURIES
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)
future medical and hospital expenses
future economic loss
loss of amenities and enjoyment of life
Pain and suffering
loss of expectation of lifeDAMAGES: PERSONAL INJURY
Part 2 Personal Injury Damages
(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.
Exemplary, punitive & aggravated damages:
(a) for less than 6 hours per week, and
(b) for less than 6 months: s15(3)
Geaghan v D’Aubert  NSWCA 260
Harrison v Melhem  NSWCA 67
INJURY TO RELATIONAL INTERESTS
Dependents may sue for loss
actual or expected benefits
Parent/master may sue for
wrongful deprivation of the
Services of a child/servant
Loss of services
Loss of consortium
An action that permitted
the husband to sue
for wrongful deprivation of the
- 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.
- Experts representatives of the parties were present at the birth and found the right fallopian tube was present
- 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’s Award (unchallenged on appeal)Mr M’s Damages:At paragraph 15, Gleeson CJnoted 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.
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 early 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.
Appeal – Limited to the costs of raising and maintaining Jordan
High Court – Summary of dissenting views
- [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. ”
- [para 261] “...the law should not permit the commodification of the child...”
High Court – Summary of the majority
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 sterilization 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.”
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).
(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.