Category Archives: Damages

Damages, Duty of Care, Landmark cases, LAW FIRM, Law reform, Negligence, Professional negligence, Wills and Probate

Hawkins v Clayton [1988] HCA 15

ON 8 APRIL 1988, the High Court of Australia delivered Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988).

A firm of solicitors was held to be negligent by failing to take reasonable steps to locate an executor (a non-client) following the death of a testatrix (a client whose will they prepared and retained for safe keeping) for some six years after the testatrix’s death.  The solicitors were held to be liable to pay damages for the loss suffered by the executor (who was also a residuary beneficiary) in not being able to manage the estate during the period of delay.

The majority (Brennan, Deane and Gaudron JJ) held that the solicitors owed a tortious duty of care to the executor and that the action was not statute-barred.

http://www.austlii.edu.au/au/cases/cth/HCA/1988/15.html

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Jackson v Sterling Industries [1987] HCA 23

ON 11 JUNE 1987, the High Court of Australia delivered Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 (11 June 1987).

http://www.austlii.edu.au/au/cases/cth/HCA/1987/23.html

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Civil procedure, Damages, LAW FIRM, Medical negligence, Negligence, Personal Injury, Practice and Procedure, Torts

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

ON 11 JUNE 1985, the High Court of Australia delivered Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (11 June 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/37.html

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Damages, Employer's liability, LAW FIRM, Negligence, Personal Injury, Work injuries

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 (29 May 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/34.html

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TASStRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

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Damages, LAW FIRM, Motor Accidents, Personal Injury

Todorovic v Waller [1981] HCA 72

ON 16 DECEMBER 1981, the High Court of Australia delivered Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (16 December 1981).

http://www.austlii.edu.au/au/cases/cth/HCA/1981/72.html

The High Court ruled that a discount rate be applied to the assessment of lump sum damages for personal injuries so that the present value of future economic loss be discounted by 3% to allow for inflation, tax and changes in wages.

Subsequent legislation has increased the rate to 5% in most Australian jurisdictions.

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Damages, LAW FIRM, Negligence

Fox v Wood [1981] HCA 41

ON 7 AUGUST 1981, the High Court of Australia delivered Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 (7 August 1981).

http://www.austlii.edu.au/au/cases/cth/HCA/1981/41.html

A plaintiff who claims common law damages for personal injuries, including damages for net loss of earnings, is entitled to also claim the tax he or she has paid on any refundable workers compensation weekly payments (related to those injuries) received before recovering the damages.

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Copyright, Criminal Law, Damages, LAW FIRM

Commonwealth v John Fairfax & Sons Ltd (“Defence Papers case”) [1980] HCA 44

Commonwealth v John Fairfax & Sons Ltd (“Defence Papers case”) [1980] HCA 44; (1980) 147 CLR 39 (1 December 1980).

http://www.austlii.edu.au/au/cases/cth/HCA/1980/44.html

http://www.austlii.edu.au/au/legis/nsw/consol_act/poteoa1997455

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Cullen v Trappell [1980] HCA 10

ON 1 MAY 1980, the High Court of Australia delivered Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1 (1 May 1980).

“Damages – Negligence – Personal injuries – Effect of taxation liability on quantum of damages – Whether damages should be reduced by tax plaintiff would have paid in respect of earnings if he had not been injured – Gourley principle.
Practice (N.S.W.) – Judgment – Interest – Damages for personal injuries – Damages for economic loss up to date of judgment – Damages for other than economic loss – Discretion – Supreme Court Act, 1970 (N.S.W.), s. 94 (1).”

http://www.austlii.edu.au/au/cases/cth/HCA/1980/10.html

The court overruled the earlier High Court decision of Atlas Tiles Ltd v Briers (1978) 144 CLR 202 and affirmed the rule in British Transport Commission v Gourley [1956] AC 185.

Damages are to compensate the plaintiff for the loss suffered, no more or no less. If the damages are taxable income, allowance should be made for this by an award of the gross sum.  If the damages are not taxable, the award should be reduced by any tax the plaintiff would have been required to pay. If the plaintiff is entitled to a tax deduction as a result of the loss, an allowance should be made in the award.

In a claim for personal injuries damages, a court must assess the plaintiff’s pre-injury earning capacity with regards to their net income after tax.  An assessment involving gross income would result in over-compensation.

Interest on past continuing losses is not to be paid at the full rate for the whole period as this would lead to over-compensation. Instead, interest is to be paid at half the rate over the full period or at the full rate over half the period so as to take into account the gradual way in which interest accrues. The awarding of interest is a discretionary matter that must be approached in a “broad and practical way”.

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Damages, LAW FIRM, Personal Injury, Uncategorized

Griffiths v Kerkemeyer [1977] HCA 45

ON 31 AUGUST 1977, the High Court of Australia delivered Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 (31 August 1977).

At common law, a person disabled by the fault of another may recover damages for the commercial value of any necessary nursing and domestic services provided gratuitously by a friend or relative.

Legislation such as the Civil Liability Acts modify the common law, limiting the circumstances of entitlement and the amounts that may be claimed.

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Damages, Injunctions, LAW FIRM, Negligence, Neighbourhood disputes, Nuisance

Miller v Jackson [1977] EWCA Civ 6

ON 4 JUNE 1977, the England and Wales Court of Appeal delivered Miller v Jackson [1977] EWCA Civ 6 (06 April 1977).  A cricket club was sued in negligence and nuisance caused by cricket balls landing on a neighbour’s property.  Whilst ordering damages, the court refused to grant an injunction to cease the action or further action as the game of cricket itself was considered to be in the public interest.

Lord Denning began with the following:

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

http://www.bailii.org/ew/cases/EWCA/Civ/1977/6.html

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