1. TORTS 11 DAMAGE CONCURRENT LIABILITY NUISANCE

2. THE IMPACT OF THE CIVIL LIABILITY ACT: Summary of Provisions Cap on non-economic loss - $350,000 General damages or pain and suffering (S16.2) Cap for economic loss (loss of earnings and earning capacity) – 3 x average weekly earnings (S12.2). Threshold for non-economic loss - 15% of worst case (S16.1) Discount to damages for future economic loss – 5% (S14.2) Cap costs recoverable for plaintiff lawyers – less than $100,000 to 20% of damages, or $10,000 – whichever is greater (Schedule 2, Div 5b). Exemplary, punitive and aggravated damages – court can’t award such damages where the cause is negligence (S21

3. GRATUITOUS SERVICES The Act has restricted payments for gratuitous care services. Damages for “gratuitous attendant care services” are now defined as any of the following; – services of a domestic nature, –services relating to nursing, –Services that aim to alleviate the consequences of an injury. Such damages will be awarded where; They are being or, (are to be provided) by another person to a claimant, for which the claimant has not paid or is not liable to pay

4. GRATUITOUS SERVICES Gratuitous damages will not be awarded where; –there was a need for the services to be provided, and –The need arose solely because of the injury to which the damages relate, and the services would not have been provided to the claimant but for the injury. –Further, no damages may be awarded to a claimant, if the services are to be provided for less than 6 hours per week, and for less than 6 months.

5. ECONOMIC LOSS The maximum amount that may be awarded due to loss of earnings or the impairment of earning capacity is fixed at a rate of three times the weekly earning average This is currently just over $2800. If the award for damages includes a lump sum component for future economic loss, the amount must be discounted by 5% or another percentage rate as prescribed by the Regulations

6. DAMAGES FOR PERSONAL INJURY: THE DISCOUNT RATE Using a discount multiplier of 5% rather than the pre-Act 3% rate will provide quite significant reductions in many claims. –25 year old male with a 40 year earning capacity who is awarded damages at $1,000 per week would be entitled to $1,040,570.00 on the 3% discount tables while under the new Act rate of 5% this would amount to $779,875.00 – a saving of $260,695.00.

7. NON-ECONOMIC LOSS "Non-economic loss" means any one or more of the following: –pain and suffering, –loss of amenities of life, –loss of expectation of life, –Disfigurement No damages may be awarded to a claimant for non- economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. The maximum amount of damages that may be awarded to a claimant for non-economic loss is $350,000. This amount is to be awarded only in the most extreme cases. The court can not order the payment of interest on damages awarded for non-economic loss.

8. INJURY TO RELATIONAL INTERESTS

9. THE SCOPE OF THE ACTIONS Parent/master may sue for wrongful deprivation of the Services of a child/servant An action that permitted the husband to to sue for wrongful deprivation of the wife’s consortium Dependents may sue for loss actual or expected benefits Loss of servicesLoss of consortium Death

10. COMMON LAW AND THE SURVIVAL OF ACTIONS In the event of death from a wrongful act there are two potential defendants: –the estate; and –dependants Traditionally in Common Law, a personal action ‘died’ with the victim

11. The Estate: Lord Campbell’s Act (1846) The Act modified the Common Law rule in England. –The effect of the legislation was to give to the estate the action which the deceased would have had she or he survived Australian States and Territories have adopted similar statutes with modifications

12. SURVIVAL OF ACTIONS: NSW Law Reform (Miscellaneous Provisions) Act (NSW) 1944 Part 2 Survival of causes of Action After Death –Subject to the provisions of this section, on death of any person …all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate;...

13. QUALIFICATIONS Section 2(2) of the Act does not allow for recovery of the following types of damages: –exemplary damages –loss of earning capacity/loss of future probable earnings –loss of expectation of life –pain and suffering Incidental losses or gains except for funeral expenses will not affect the quantum of damages

14. HEADS OF DAMAGES ALLOWABLE DAMAGES –Needs created; reasonable expenses incurred before death –Reasonable funeral expenses (compare Public Trustee v Bednarczjk [1959] SASR 178, and Tripodi v Leonello (1981q) 29 SASR 86 NON-ALLOWABLE –loss of earning capacity –Non-economic loss

15. DEPENDENTS’ CLAIMS Compensation to Relatives Act 1897 (NSW) –3(1) Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect or default is such as would ( if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages

16. DEPENDANTS: STANDING Compensation to Relatives Act 1897 (NSW) S4: –spouses –parents (including those in loco parentis) –de factos Compensation to Relatives Act (De facto Relationships )Amendment Act 1984) –children (including step children) –siblings (half and full)

17. SCOPE OF LOSS Public Trustee v Zoanetti (1945) 70 CLR 266 –‘The basis for the action is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for pecuniary loss’ –What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased … (Dixon J, 279)

18. HEADS OF DAMAGES Loss of economic support/loss of reasonable expectation of financial benefit Loss of domestic services

19. LOSS OF REASONABLE EXPECTATION OF FINANCIAL BENEFIT The benefit is a ‘chance’ that is lost. P must therefore establish such ‘chance’ in accordance with the principles of reasonable certainty. (Taff Vale Railway Co v Jenkins (1913)AC 1, 7 –All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact from which the inference can be reasonably drawn... It may be immaterial that the deceased was unemployed prior to his/her death In the case of a young child, there has to be evidence sufficient to establish the potential to provide the benefit (McDonald v Hillier [1967] WAR 65) In circumstances where maintenance obligations are transferred to a third party this may not necessarily preclude a claim because of future contingencies (Thomson v Mandler [1976] 2 NSWLR 307

20. THE SOPE OF THE RELATIONS The expected benefit must arise from the personal relationship that gives rise to dependency between the deceased and the claimant; it therefore excludes business relationships (Henry v Perry [1964]VR 174, 175)

21. DOMESTIC SERVICES Nguyen v Nguyen (1990) CLR 245 –The claim: ‘loss of the deceased’s domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning’ The definition of ‘services’ is broad: –‘There is no reason why ‘services’ in this context should be given an unduly narrow construction, as if a wife is no more than a house keeper’ Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen) –Where the services are likely to to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serves to reduce the compensation to which the plaintiff will be entitled … because the P’s loss is thereby directly reduced ( Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen)

22. LOSS OF CONSORTIUM The traditional common position permitted a husband to maintain an action under three heads for loss of consortium (actio per quod consortium amisit) –Loss of the wife’s company including sexual companionship –Loss of her domestic services –Medical and other expenses incurred as a result of the injury to the wife In Qld, SA the action to available to both spouses; in NSW, Tas and WA, the action has been abolished

23. LOSS OF SERVICES Traditionally the common law allowed a cause of action (actio per quod servitium amisit) for the loss of services of: –Children –Servants While the action for loss of services in the case of the child is rare today, action for loss of services from a servant remain a feature of the common law

24. LOSS OF SERVICES: SERVANTS The action was traditionally restricted to menial services offered by the servant. In Australia there is no restriction based on the types of services as such Heads of damage: –Loss of profits –Payment to the servant of sick-pay or pension –Out of pocket expenses such as Workers Comp. Or medical expenses. The Motor Accidents Comp. Act 1999 excludes compensation for loss of services s 142 The Employees Liability Act 1991 excludes against employees by employers P cannot claim for the death of a servant (Sawn v Williams)

25. CONCURRENT LIABILITY

26. VICARIOUS LIABILITY Vicarious liability makes D (usually the master/employer) liable for the torts of another (usually his or her servant/employee) although the master is without any blame or fault. The rationale: Examples of vicarious relationships:

27. VICARIOUS RELATIONS AND AGENCY An agent acts for the principal; but the liability of the principal for the act of the agent is not based on vicarious liability The liability of the principal is based on the maxim: qui facit per alium, facit per se The agent acts in a representative capacity and has the authority to act for the principal but is not necessarily a servant

28. Vicarious liability arises only in respect of the torts of the servant The master/employer is therefore responsible only for the torts of the servant and not the independent contractor For the master/employer to be held liable, the tortfeasor must: – be a servant – commit the tort in the course of his or her employment SERVANTS AND INDEPENDENT CONTRACTORS

29. WHO IS A SERVANT? A servant is one who is under a contract of service to another an independent contractor is under a contract for services The contractor is paid for the job by results rather than for time spent, receives a fee or commission, the servant receives wages The contractor is usually employed on a casual basis, the servant on a permanent basis The contractor usually specifies his/her work schedule and supplies his/her own tools The master may select the servant for the task

30. WHO IS A SERVANT?: THE CONTROL TEST If the Master controls what the employee does and how it is done, then the employee is a servant. The relationship will give rise to Vicarious Liability. Zuijs v Wirth Bros: The case of the trapeze artist What is essential is whether there is lawful authority to command or give directives if there is scope for it. Stevens vBrodribb Sawmilling)

31. ‘IN THE COURSE OF EMPLOMENT’ D is liable only if the servant committed the tort in the course of his or her employment –Deaton v Flew –Morris v Martin

32. TORTS LECTURE NUISANCE

33. WHAT IS NUISANCE? An unreasonable conduct that materially interferes with the ordinary comfort of human existence

34. THE TWO ‘SIDES’ OF NUISANCE NUISANCE PRIVATE PUBLIC NUISANCE

35. PRIVATE NUISANCE Unlawful interference with P’s interest in land The tort protects against interferences with the enjoyment of land

36. THE NATURE OF THE TORT Conduct or something that emanates from D’s land –Noise –Dirt –Fumes –Noxious smell –Vibrations etc –(interference with TV signals)?

37. INTERESTS PROTECTED The tort centers on interest in the land that is affected D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question –Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races takig place on P’s land) –Thomson v-Schwab v Costaki (prostitutes in the neighbourhood) –Young v Wheeler –Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)

38. NUISANCE AND THE PROTECTION OF PRIVACY Victoria Park does not stand in the path of the development of such a cause of action [in privacy] (per Gummow, HayneJJ with Gaudron in agreement in ABC v Lenah Games Meats Pty Ltd (2001) 185 ALR 1)

39. TITLE TO SUE P must have proprietary interest in the affected land to be able to sue –Oldham v Lawson –Hunter v Canary Wharf –Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275

40. THE NATURE OF D’S CONDUCT THE NATURE OF D’S CONDUCT D’s conduct must be unreasonable. – In genera act/conduct which are reasonably necessary for the normal user of land would not be considered unreasonable –Munro v Southern Dairies ( smells from D’s property where he keeps 5-7 horses with associated smells, noise and flies held to constitute a nuisance)

41. ABNOMAL PLANTIFFS Where D’s conduct is neither unreasonable nor excessive P cannot claim –Robinson v Kilvert (27 degree heat generated as a result of D’s work in lower floor causing damage to P’s sensitive paper) But where D’s conduct even though slight, but is malicious, P can claim –Hollywood Silver Fox Farm Ltd v Emmett (gunshots to frighten P’s vixen and to discourage P from setting up- farm. Pretext that the shooting was to keep rabbits off the property was not accepted)

42. WHO MAY BE SUED? The creators of the nuisance –Fennell v Robson Excavations (1977) Occupiers –De Jager v Payneham & Magill Lodges (1984) 36 SASR Occupier may be liable for the acts of a party who resides on the property with occupiers permission –Sedleigh-Denfield v O’Callaghan –Hargrave v Goldman ( an occupier may be held liable where they allow the continuation of a nuisance from the land even though they may not have created it initially)

44. PUBLIC NUISANCE Any nuisance that materially affects the reasonable comfort and convenience of a class of people P may sue in public nuisance only if he/she can establish special damage above and beyond that suffered by other members of the affected public –Walsh v Ervin ( D ploughs up part of highway obstructing access to P to the highway, D held liable)

45. QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS Silservice Pty Ltd v Supreme Bread Pty Ltd (queues to buy bread on George Street) –Queues do not necessarily provide a basis for an action even where they seem to obstruct a public access way that affects the P –However D may be liable if the crowd is attracted by something done by D which is not bona fide necessary for the conduct of his/her business the facility for the purpose of D’s trade is inadequate or not suitable to hold or control the crowd D could employ some other reasonable means within his control to minimize or prevent the damage to P

46. THE DEGREE OF INTERFERENCE It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and material( York Bros v Commissioner of main Roads: construction of a bridge across a river obstructs navigation by P, held nuisance)

47. PUBLIC BENEFIT AND PUBLIC NUISANCE In general public benefit is not a defence that can defeat P’s objections to D’s conduct Where the interference to P is not substantial, the public benefit argument may be used to reinforce the justification to the inconvenience caused to P

48. REMEDIES Abatement of nuisance – Who bears the cost of abatement? –Normally the abater does, but see Proprietors-Strata Plan No 14198 v Cowell where it was held that Do may be required to bear cost if the steps taken by P to abate were in reasonable mitigation Injunction to prevent the continuation Damages