ON 11 NOVEMBER 1998, the High Court of Australia delivered Marks v GIO Australia Holdings [1998] HCA 69; 196 CLR 494; 158 ALR 333; 73 ALJR 12.
http: //www.austlii.edu.au/au/cases/cth/HCA/1998/69.html
Assessments of damages under the Trade Practices Act 1974 should not be limited to analogies under contract, tort or equity.
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ON THIS DAY in 1996, the High Court of Australia delivered Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 (24 April 1996).
McHugh J set out the principles for assessing compensatory damages for negligence:
“Principles
4. When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant’s negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred(5). The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, “in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation”(6). Consequently, when a plaintiff asserts that, but for the defendant’s negligence, he or she would not have incurred a particular expense, questions of causation and reasonable foreseeability arise. Is the particular expense causally connected to the defendant’s negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred? Those questions arise in the present case. Is the expense of fund management causally connected to the negligence of the defendant? If so, was the incurring of the expense a reasonably foreseeable consequence of the defendant’s negligence? If either of those questions is answered in the negative, the expense cannot be recovered from the defendant.
5. If a defendant’s negligence results in the plaintiff being so mentally or physically incapacitated that she is unable to manage day-to-day tasks, the basic principles of compensation for tortious conduct entitle the plaintiff to damages both for the disability and the expense of managing those tasks. The expense is just as much a product of the defendant’s negligence as is the disability. It is compensable therefore unless it is damage of a kind that a defendant could not reasonably foresee. Similarly, if a plaintiff can no longer manage her affairs with the same skill as before the accident, both the reduction in skill and any expense reasonably incurred in bringing the management of those affairs to the pre-accident level are compensable in damages. Likewise, if the defendant’s negligence has aggravated a pre-existing incapacity, the plaintiff is entitled to be compensated to the extent that the aggravation has increased the incapacity and caused expense to the plaintiff.
6. Damages may therefore be awarded for the expense of managing a plaintiff’s verdict moneys when the plaintiff’s disabilities prevent him or her from managing those moneys and the disabilities are the foreseeable consequence of the defendant’s negligence. Damages may also be awarded for the expense of investment advice where, as the result of the defendant’s negligence, the plaintiff is no longer able to make adequate decisions concerning his or her own financial affairs. In both cases, damages are payable by the defendant because the expense is the necessary product of the defendant’s negligence and is not the result of the free, informed and voluntary act of the plaintiff. The expenses have been brought about by the loss of the plaintiff’s ability to do what that person was capable of doing before the occurrence of the tort which gives rise to the claim for compensation.
7. But a different area is reached when the plaintiff seeks damages, not for expense necessarily incurred as the result of a disability caused by the defendant’s negligence, but for an expense arising merely from the size of an award of damages and the exercise of a choice by the plaintiff as to how to invest those damages. The expense of exercising that choice is not the consequence of the plaintiff’s injury. It is the result of the plaintiff’s decision to invest his or her money (usually in a professionally managed fund) rather than to spend it or to invest it in a fixed asset or some other form of investment. It is true that such an expense would not have been incurred but for the defendant’s negligence. But the common law of Australia has rejected the “but for” test as the legal test of causation although, “applied as negative criterion of causation, (that test) has an important role to play in the resolution of the question”(7).
8. Under the common law theory of common sense causation, a free, informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant’s tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage(8). That is so even though the act of the plaintiff or third party would not have occurred but for the defendant’s tort. Consequently, unless a defendant’s wrong has caused a disability that requires the plaintiff to obtain assistance in managing his or her verdict moneys, the cost of such assistance is not caused by the defendant’s negligence and is not recoverable as damages from the defendant. Nor, as we shall see, is it a factor such as income tax(9) which must be taken into account if the plaintiff is to receive a full indemnity.”
http://www.austlii.edu.au/au/cases/cth/HCA/1996/53.html
Sydney, Australia
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ON 27 OCTOBER 1995, the NSW Court of Appeal delivered CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47.
The plaintiff (CES) sought civil damages for the loss of opportunity to terminate a pregnancy arising from the defendants’ alleged breach of duty of care by failing to detect a pregnancy . Newman J of the Supreme Court of NSW found in favour of the defendants, not satisfied that the evidence justified a finding that termination of pregnancy would have been legal in accordance with Levine J’s test in R v Wald.
The NSW Court of Appeal upheld an appeal, ordering a new trial. The Court of Appeal held that the evidence did not justify a finding than a termination of pregnancy would have been illegal.
The Wald test, per Levine DCJ (at 29) provides:
“It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s33 of the Act could be proved.”
Kirby P in CES and Anor v Superclinics (Australia) Pty Ltd and Ors said that the Wald test “allows a consideration of the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and proportionality of a termination.”
Kirby P said that there is “no logical basis for limiting the honest’ and reasonable expectation of such a danger to the mother’s psychological health to the period of the currency of the pregnancy alone.”
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ON 16 FEBRUARY 1995, the High Court of Australia delivered Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322 (16 February 1995).
http://www.austlii.edu.au/au/cases/cth/HCA/1995/5.html
Per Deane, Dawson, Toohey and Gaudron JJ said at [6]:
“For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff …which constitutes a more immediate cause of the loss or damage. … If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant’s wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.”
Per McHugh J at [20]:
“However, the ultimate question is whether, as a matter of common sense, the financial loss that the plaintiff has suffered was caused by the plaintiff’s act in resigning his office rather than by the defendant’s negligence.”
Per McHugh J at [23]:
“The plaintiff’s complaints of pain and fatigue, his decreasing confidence in his own abilities, his belief that he was no longer teaching as well as he was before the accident and his inability to find time for research combine to make a strong case for concluding that his early retirement was not unreasonable. A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff’s reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves.”
Sydney, Australia
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The majority was of the view that purpose of an account of profits is not to punish the defendant but to prevent their unjust enrichment.
Per Mason CJ, Deane, Dawson and Toohey JJ at 111:
“Damages and an account of profits are alternative remedies ((6) See Neilson v. Betts (1871) LR 5 HL 1, at p.22; Lever v. Goodwin (1887) 36 ChD 1, at p.7; Patents Act 1990 (Cth), s.122(1).).
An account of profits was a form of relief granted by equity whereas damages were originally a purely common law remedy ((7) cf. Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), pp.659-660.). As Windeyer J pointed out in Colbeam Palmer Ltd. v. Stock Affiliates Pty. Ltd. ((8) [1968] HCA 50; (1968) 122 CLR 25, at p.34.), even now ((9) See Patents Act 1952 (Cth), s.118(1); Patents Act 1990 (Cth), s.122.) an account of profits retains its equitable characteristics in that a defendant is made to account for, and is then stripped of, profits which it has dishonestly made by the infringement and which it would be unconscionable for it to retain. An account of profits is confined to profits actually made, its purpose being not to punish the defendant but to prevent its unjust enrichment ((10) My Kinda Town Ltd. v. Soll (1983) RPC 15, at p.55; Potton Ltd. v. Yorkclose Ltd. (1989) 17 FSR 11, at pp.14, 15; Sheldon v. Metro-Goldwyn Pictures Corp. [1940] USSC 57; (1940) 309 US 390, at
p.399.). The ordinary requirement of the principles of unjust
enrichment that regard be paid to matters of substance rather than
technical form ((11) See Baltic Shipping Co. v. Dillon [1993] HCA 4; [1993] HCA 4; (1993) 176 CLR 344, at p.376.) is applicable.”
Per McHugh J at 123:
“The object of an account of profits is to make the infringer give up its gains in order to prevent its unjust enrichment. No element of punishment is involved.”
Sydney, Australia
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ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).
http://www.austlii.edu.au/au/cases/cth/HCA/1993/76.html
Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock. It was known to Rottnest that visitors engaged in this activity.
Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.
The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”
The accident was cased by a failure on the part of Rottnest to erect a sign.
The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.
Sydney, Australia
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ON 10 FEBRUARY 1993, the High Court of Australia delivered Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289; (1993) 67 ALJR 228 (10 February 1993).
http://www.austlii.edu.au/au/cases/cth/HCA/1993/4.html
As an exception to the rule that damages are not available for mental distress and disappointment arising from a breach of contract, such damages may be awarded if the contract in question contemplated the delivery of enjoyment, relaxation or peace of mind.
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ON 17 NOVEMBER 1991, the NSW Supreme Court delivered Ettingshausen v Australian Consolidated Press Limited [1991] 23 NSWLR 443.
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ON 26 JUNE 1990, the High Court of Australia delivered Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 (26 June 1990).
http://www.austlii.edu.au/au/cases/cth/HCA/1990/20.html
When assessing damages for events that would or would not have occurred, or might or might not have occurred, the approach is different to that events which have occurred.
A court determines on the balance of probabilities whether or not an event has occurred. For events that would have or might have occurred, the court is to adjust the award of damages to reflect the degree of probability of that event occurring.
Sydney, Australia
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COMPENSATION TO RELATIVES. ON THIS DAY in 1990, the High Court of Australia delivered Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 (8 March 1990).
In this matter, a widower was able to claim the loss of unpaid domestic services of his late wife.
In a Lord Campbell’s Act claim, a loss may include the value of services the deceased would have provided around the home.
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