Introduction to negligence and damage claims
Very few claims for personal injury are actually entitled to A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages.. Generally, for an injured person to be entitled to damages, they must first establish that there has been An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. on the part of another person. Examples of such cases include an industrial accident, a motor vehicle accident, a slip or fall in a public place, or medical treatment gone wrong.
There are two aspects to every claim for damages arising out of negligence:
- First, a A person who begins a civil action against another person. must establish Legal responsibility, enforced by civil or criminal courts. (or fault) on the part of the A person who has been charged with a criminal offence or against whom a civil action has been brought. by proving negligence.
- Second, once liability has been established, the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. then assesses the amount of appropriate damages.
It is important to seek advice from a lawyer or a community legal centre in all cases involving a possible claim for damages for personal injury.
Which courts hear negligence and damages claims?
Claims for damages arising out of negligence usually proceed in the County Court or the Supreme Court, but occasionally they are issued in the Magistrates’ Court. The seriousness of the injury, and thus the amount of damages sought, A document that sets out what a person wants to happen to their money and other property after they die. determine the court in which proceedings are issued (for monetary limits, see Chapter 1.2: An introduction to the courts).
In the County Court and the Supreme Court, claims for damages arising out of negligence can be heard before a judge sitting alone or a judge sitting with a A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases.. Claims in the Magistrates’ Court are heard by a magistrate without a jury. Generally, claims are commenced by the issue of a (1) A formal legal document in in the Queen’s name, commanding a person to do or refrain from doing some act. (2)The document that starts a court action. It is issued by the court at the request of a plaintiff, and given to the other party so they know there is a legal claim against them. See also summons. (Supreme or County Court) or a complaint (Magistrates’ Court).
The parties to negligence and damages claims
The plaintiff is the person claiming damages. The plaintiff may be the actual person injured, or a dependant claiming damages arising out of the wrongful death of an injured person.
The defendant is the person or body Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. to have been negligent or to have been responsible for such negligence.
A An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort.
To establish liability at (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws., a plaintiff must first establish that a defendant owed a duty of care (a responsibility) towards the plaintiff or the deceased person.
The reasonable person standard
Over a period of years, the law has established a requirement that people (including companies and governments) should conduct their affairs to a standard to allow for the protection of others against unreasonable risks. The standard required is that of the reasonable person.
What a reasonable person would have done in the circumstances is a matter for the courts to decide, after considering all the facts surrounding the incident(s) that caused injury to the plaintiff or the deceased person. This involves asking questions like: Was the harm foreseeable? What is the usual practice in the circumstances? How likely was it that harm would result from the defendant’s conduct?
The courts have considered these problems in some detail over the years. The principles applied in specific areas are discussed in the following chapters.
If the defendant fails to do something that a reasonable person would do, or does something that a reasonable person would not do, the law states that there has been a breach of the duty of care.
The plaintiff has been injured
Establishing that there has been neglience does not necessarily mean that the plaintiff is entitled to damages. The plaintiff must show that there has been an actual injury. For example, a plaintiff who has been exposed to dangerous chemicals as a result of the negligence of another must show an actual injury, not just the mere possibility of injury.
Connection between the negligent conduct and the plaintiff’s injury
The plaintiff must also show that there is a reasonably close connection between the defendant’s conduct and the injuries suffered by the plaintiff or the deceased person. Either the damage must not be too remote from the wrong conduct, or the wrong conduct must be an effective cause of the injuries. However, the wrong conduct does not need to be the only cause of injury.
The courts must consider whether the plaintiff or the deceased person engaged in conduct that will either defeat the action for damages completely or reduce the amount of damages recovered.
(1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. of volenti non fit injuria
The defence of volenti non fit injuria (To agree to something being done, to approve an action or arrangement. See also informed consent. to the injury) is applicable if the defendant can prove that the plaintiff had full knowledge of the risk of injury to themselves, and had voluntarily assumed or undertaken the liability resulting from that risk. For example, a plaintiff is injured in a collision while travelling in a car with a drunk driver. If this defence succeeds, it defeats the plaintiff’s claim for damages, even if the defendant was negligent.
If the defendant can show that the negligence of the plaintiff or the deceased person also contributed to the damage sustained, this will only reduce the plaintiff’s claim for damages by the percentage contribution found by a judge or jury. For example, if the court finds that the plaintiff or the deceased person was 10 per cent to blame for their own injuries because of not wearing a seat belt at the time of the collision, the amount of damages payable to the plaintiff will be reduced by 10 per cent.
Breach of Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. duty
In deciding whether a defendant has been negligent, a judge or a jury may have to consider whether there has been a breach of a statutory duty. For example, a person may have been injured in a collision where the defendant had failed to give way to the right in accordance with the Road Safety (Drivers) Regulations 2009 (Vic). Such a breach is at least Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. of negligence, as there has been a breach of the common law duty to take care. Courts have also used a breach of a statutory duty as being negligence in itself, particularly where the A law made by parliament, either state or Commonwealth. Also called an Act, and Act of parliament or legislation. does not provide criminal penalties for the breach of that statute. Note that these principles have now been significantly altered by Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute., and in particular by the Wrongs and Other Acts (Law of Negligence) A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2003 (Vic) (see ‘Key legislation: Wrongs Act’, below).
Once the court is satisfied that the defendant has been negligent, it then must proceed to assess damages.
Damages paid as a lump sum
Damages are generally assessed as a lump sum on a ‘once and for all’ basis. Such an assessment finalises the injured party’s rights and there is no right to come back to the court to have damages further assessed at a later stage. However, the Wrongs Act 1958 (Vic) allows a court to make an order for a ‘structured settlement’ by way of periodic payments funded by an A payment or other benefit that is received once a year. or other means (pt VC).
The lump sum is assessed by adding together various amounts assessed under individual heads of damages. The courts make a distinction between Part of the money a court orders to be paid as compensation by a defendant. Special damages cover specific expenses that can be calculated exactly, such as medical expenses or the cost of buying a replacement item. See also damages; general damages. and Part of the money a court orders a defendant to pay as compensation. General damages cover losses that cannot be calculated exactly, such as money for pain and suffering, disfigurement or loss of earning capacity or enjoyment of life. See also exemplary damages; special damages..
Special damages generally refers to out-of-pocket expenses. These may include medical and like expenses such as ambulance fees, loss of earnings to the date of trial, and other incidental expenses such as home help. Because of their very nature, special damages are generally easily quantifiable.
General damages covers such matters as loss of earning The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. in the future, pain and suffering, loss of enjoyment of life and disfigurement. They are of their very nature incapable of precise mathematical calculation. The court looks at these individual aspects of general damages and assesses the suitable amount of money that is fair and reasonable to both parties to compensate the plaintiff.
Damages for the injured person’s dependants
Where the injured person has died as a result of the negligence of the defendant, the person’s dependants have their own claim for damages. It is important to note that the dependants are not entitled to any damages for grief or suffering as a result of the death, but only to damages for the monetary loss that they have suffered. In calculating this loss, courts must take into account the financial benefit the dependants would have received from the deceased had the deceased lived, less certain benefits that they have received arising on the death.
When the injured person has no dependants
If the injured person has no dependants, the deceased’s All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. can commence or continue an action for negligence, but damages are generally limited to such matters as loss of earning capacity before the death and medical, hospital and other expenses incurred before the death.
Assessment of lost earning capacity
To assess loss of earning capacity in the future, the court must consider to what extent the plaintiff’s ability to earn income will be affected in the future and for how long this restriction will continue. The extent to which a plaintiff’s earning capacity has been affected depends on the individual facts of each case. The judge or jury must calculate a present value of this future monetary loss (comprising loss of earning capacity and future medical expenses).
In most actions for damages for personal injuries, the present value of such future loss is assessed by adopting a discount rate of five per cent (s 28I Wrongs Act 1958 (Vic)). However, the Transport Accident Act 1986 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) specify six per cent. This rate is intended to make the appropriate allowance for inflation, for future changes in rates of wages and prices and for taxation upon income from investment of the sum awarded. The High Court has directed that no allowance should be made for those matters.
This has now made it easier to assess the present value of future economic loss. By giving the plaintiff damages assessed at the five per cent or six per cent rate, the plaintiff may be able to invest at a higher rate and thus hopefully limit the effects of inflation and taxation on the (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. of damages.