Remedies

Common Law Damages
· Damages are a monetary sum awarded to the plaintiff
· Types of damages include:
A. Compensatory
B. Aggravated
C. Exemplary
D. Nominal

· Damages intended to compensate the plaintiff for any damage they have suffered as a result of the tort committed by the defendant.
· Butler v Egg and Egg Pulp Marketing Board (1966) 114 185; 191: ‘… is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract has been performed or the tort had not been committed’.

1. Egg-shell Skull Rule:
2. Indemnity Principle:
3. Once and For All Rule:
4. Duty to Mitigate:
5. Lump Sum Rule:

Egg-shell Skull Rule: The defendant must take the plaintiff as the defendant finds them with all their weaknesses, beliefs, capacities and attributes: Nader v Urban Transit Authority (1985) 2 NSWLR 501.

Indemnity Principle: Because the goal in torts is to put the plaintiff in the position they would have been in if the tort had not occurred the plaintiff will be compensated for the disadvantages arising from the tort minus the advantages.

Once and For All Rule: The plaintiff is only entitled to one award of damages which must encompass an estimate for all of their future losses.

Duty to Mitigate: If the plaintiff unreasonable fails to mitigate their harm or loss then the defendant is not liable to compensate the plaintiff for the loss arising from this failure to mitigate.

Lump Sum Rule: Unless there is some statutory modification a plaintiff must be paid in a lump sum and not via instalments: Civil Liability Act 2002 (WA).

· Categorisation of damages:
ª Special damages: these damages are awarded in respect of actual losses incurred from the date of the tort until the date of the verdict which are capable of precise calculation or estimation: Paff v Speed (1961) 105 CLR 549.
ª General damages: there are damages which are not capable of precise mathematical calculation or estimation: Paff v Speed (1961) 105 CLR 549.

Types of harm to be compensated:
1. Personal injury
2. Property damage
There principles apply regardless of how the harm was tortiously suffered: trespass, negligence or nuisance.

Compensatory damages for personal injury – Under the common law damages for personal injury are broadly divided into the following categories:
ª Pecuniary Losses
- Out-of-pocket expenses
- Loss of expected benefits (including earnings); and
ª Non-pecuniary Losses
- Pain and suffering;
- Loss of amenity; and
- Loss of expectation of life

Pecuniary loss – Out-of-Pocket expenses
Under special damages – the plaintiff may claim the cost arising from medical expenses and care up to the date of the trial if the expenses are due and payable.
§ Under general damages – the plaintiff is entitled to claim the cost of medical expenses and care that will be reasonable necessary in light of the plaintiff’s injuries from the date of judgement until the plaintiff’s expected recovery or death.
§ Griffiths v Kerkemeyer (1977) 139 CLR 161: case that sent the precedent that damages could be awarded for gratuitous services.
§ Van Gervan v Fenton (1992) 175 CLR 327: case that held how the plaintiff should be compensated for the gratuitous care – the market cost or value of those services is the fair and reasonable value of such services (and not the wages forgone by the carer).
Civil Liability Act 2002 (WA) s 12: places a cap on the amount that can be awarded for gratuitous care.

Pecuniary/Economic loss – Loss of Expected Benefits (including earnings)
§ Special damages – a plaintiff is entitled to be compensated for the loss of earnings from the date of the tort until the date of the trial. However, the indemnity principle must be applied.
§ General damages – are calculated for the loss of earning capacity:
Ø The plaintiff is also entitled to recover damages for future loss of earnings from the date of the trial until the expected date of recovery or retirement minus a discount for the ‘vicissitudes of life’ (otherwise referred to as ‘contingencies’).
Ø The mathematical formulae is: lost weakly earnings at the time of the accident x the weeks remaining in the plaintiff’s working life (or until expected recovery) – a percentage for the vicissitudes of life.
Ø Again, the indemnity principle applies – Sharman v Evans (1977) 138 CLR 563: to award the plaintiff damages for future nursing and medical care without taking out the plaintiff’s cost for board and food (which would be included in the hospital care) would result in overcompensation. Therefore the food/board must be deducted from the damages awarded.
Ø The discount applicable for the vicissitudes of life is 6% in WA, however the courts will still look into the specific factors of the case which affect the plaintiff when determining the discount rate applied.
Ø The Civil Liability Act 2002 (WA) s 11 places a cap on the amount that can be awarded for loss of earnings (must not exceed three times the amount of the average weekly earnings). Therefore encouraging higher income earners to obtain their own insurance.

Yes. Civil Liability Act 2002(WA) ss 9, 10 and 10A imposes a threshold and a cap on the amount of non-pecuniary loss which can be recovered by a plaintiff and allows the court to look to case law to determine what an appropriate amount would be for the type of loss suffered by the plaintiff.

§ This is a difficult head of damage to asses; it is just a matter of discretion based on what is fair and just in the particular circumstances, while having regard to similar awards in similar cases.
§ It is a subjective test, where the relevant factors are:
o Circumstances giving rise to the injury
o Distress caused by treatment
§ A plaintiff may not be awarded any damages for pain and suffering if a major component of their injury in unconsciousness: Skelton v Collins (1966) 115 CLR 94.