Very few claims for personal injury result in court awards of damages. First, negligence has to be shown, and courts also consider cause of injury, responsibility, consent, the parties’ conduct and whether injury was foreseeable. There are time limits and other restrictions on claims. Legislation has made important changes to the law in this area.

Contributor

Brian Wright

Magistrate

Other matters related to negligence and injury

Last updated

1 July 2020

Penalty interest

If an action for damages proceeds to a final decision in which the court awards damages (that is, the action is not settled out of court by the parties), the award generally carries an amount of damages for interest as well. The interest is generally not awarded on damages for the future, that is, future loss of earning capacity and future medical or nursing expenses.

However, in actions by dependants arising out of a wrongful death, the damages are assessed as at the date of death, and the court may award interest on the whole of the damages awarded. The interest, known as ‘penalty interest’, varies from time to time; the current rate is regularly published in the Government Gazette.

Costs

A plaintiff who succeeds in an action for damages is generally entitled to costs. Such costs are generally assessed by the Costs Court of the Supreme Court if the parties are not able to agree. Costs are usually awarded on what is known as the ‘party–party scale’. The scale does not necessarily cover all the costs that the plaintiff’s legal representatives may have properly incurred in running the action for damages (see ‘Legal costs’ in Chapter 2.1: Legal representation). These costs are known as ‘solicitor–client’ costs. The plaintiff usually pays solicitor–client costs out of the award of damages after the amount of party–party costs has been taken into account. If the plaintiff and the legal representatives are unable to agree on the appropriate amount of solicitor–client costs they can be fixed by the Costs Court of the Supreme Court (see ‘Complaining about your lawyer’s bill’, in Chapter 2.1: Legal representation).

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