Civil Trials Bench Book
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PIAC also supports the award of exemplary damages where other damages awarded would be an insufficient deterrent. Recommendation 12—5 The Act should provide for a cap on damages.
The cap should apply to the sum of both damages for non-economic loss and any exemplary damages. This cap should not exceed the cap on damages for non-economic loss in defamation. Any award for exemplary damages should be included in the amount of damages subject to this cap.
The total amount of general damages for non-economic loss and exemplary damages awarded should be capped at the same amount as the cap on damages for non-economic loss in defamation awards.
However, if a cap were to be introduced, they supported an alignment with defamation law. A cap similar to that applied in defamation cases for non-economic loss would seem appropriate. Courts are equipped to assess appropriate awards of damages based on the context in which each case arises. Jones was understandably very upset by the intrusion into her private financial affairs.
On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. It will be for the court to decide the appropriate awards in an individual case, taking into account awards for analogous torts. Beaumont v Greathead 2 CB , . Nominal damages are available in trespass cases: Privacy as Autonomy Hart Publishing, Challenging Orthodoxy Hart Publishing, There has been some reference by UK courts when hearing actions for misuse of personal information, to vindicatory damages as a separate head of damages: However, in a UK case, Dingemans J stated that: See Ch 13 for further discussion.
In Mosley , Eady J also considered that damages may be mitigated by reference to the conduct of a plaintiff. Information Privacy Act Qld s 1 — 2. Ibid Windeyer J. Australian Sex Party, Submission The ALRC notes that there is some divergence of opinion whether exemplary damages should be available for a civil action: They have been excluded for defamation and for negligence claims, but claims under the new tort for invasions of privacy will be more analogous to other intentional torts.
In that case, the Victorian Court of Appeal denied the plaintiff an award of exemplary damages for breach of confidence, however the court did award damages for emotional distress. In that case, the court overturned an award of exemplary damages for breach of fiduciary duty. Attorney General v Blake  1 AC The Compensation to Relatives Act provides for actions to be brought on behalf of dependants of deceased victims of compensable injury to recover for loss of financial support and funeral expenses.
Only one such action may be brought so that all potential beneficiaries should be nominated as plaintiffs. Insurance, superannuation, payments from provident funds or statutory benefits are not to be taken into account in assessing an award of compensation: Although unanimously recognising changing social circumstances that cast doubt on prior authority, the High Court was divided on the issue.
Gleeson CJ accepted that this contingency should be dealt with when determining an appropriate adjustment for vicissitudes. He questioned the continued use of the term dependency to describe the right to compensation when, in modern society, it was common for both parties to a relationship to earn income and to have the capacity for financial self-support.
He accepted, however, that each party to the relationship might have expectations of direct financial support. He pointed to the anomaly involved in taking into account an established new relationship at the time of trial while making no allowance for repartnering when there was none.
This was a factor to be proved in the usual way and there was no special legal or evidentiary status attaching to the Luntz tables.
The Civil Liability Act makes no reference to actions of this nature. They answered in the negative, the plurality pointing out:.
It was not an exception or variation to the law of negligence but remained a distinct cause of action. The court indicated that caution should be exercised in expanding the scope of recoverable damages in such actions and confirmed that they did not extend to loss of profits or recovery of sick pay, pension or medical expenses payable to the employee.
Statutory benefits provide for compensation in the form of income loss; medical and other treatment expenses and attendant care services. The regime for the payment of statutory benefits for medical expenses and attendant care services applies to all claims. The statutory benefits payable for income loss extend to those claims that do not proceed to claims assessment or court.
Part 4 of the Motor Accident Injuries Act deals with awards of damages by a court and the assessment of damages by a claims assessor in respect of motor accidents. It provides for modified common law damages.
A certificate may be issued when:. An injury to a spinal nerve root that manifests in neurological signs other than radiculopathy is included as a soft tissue injury for the purposes of the Act.
Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act:. These expenses are dealt with through the statutory benefits regime. The Act expressly provides that no compensation is payable for gratuitous attendant care, leaving open the question of whether the loss of capacity to provide these services remains for assessment under the umbrella of non-economic loss: There is little change to the parameters for the assessment of loss of capacity to earn income: These limits do not apply to awards of damages in claims brought under the Compensation to Relatives Act Those claims are effectively unchanged by the Motor Accident Injuries Act.
Income loss is permitted only up to the maximum weekly statutory benefits amount, notwithstanding that this is a gross earnings amount: This amount is adjusted annually on 1 October: Credit must be given for any weekly payments made under the statutory benefits provisions: Assessment of non-economic loss remains essentially unchanged: At this stage this aspect remains unregulated.
Blameless accidents are now referred to as no-fault motor accidents. The issues in Gray v Richards , above, were whether the right of recovery extended to the cost of managing the sum awarded for management of the fund the fund management damages issue and whether it extended to the cost of managing the predicted future income of the managed fund the fund management on fund income issue.
Expenses of fund management by whatever trust company was appointed were to be included in this assessment. The court rejected the claim for the costs of fund management on fund income. Having applied the discount rate to damages awarded to cover future loss no further allowance should be made.
It was inconsistent with this comprehensive dismissal of any further allowance to suggest that the cost of managing the income generated by the fund to ensure that it maintains a net income at a given rate was a compensable loss.
The capital and income of the lump sum award for future economic loss would be exhausted at the end of the period over which that loss was expected to be incurred. It would be contrary to the principles of Todorovic v Waller , above, to assume that the fund would generate income that would be reinvested and swell the corpus under management, an assumption that could not be made when drawings from the fund might exceed its income.
In such actions, the worker may or may not join the employer. The provision applies where the worker takes or is entitled to take proceedings against both the third person and the employer: The need arose because, upon the introduction of the scheme for modification of the common law rights of a worker against an employer, it was no longer possible to determine the respective liabilities of an employer and a third party by reference simply to the proportions in which they were held to be responsible for the damage suffered by the employee.
The right of a worker to recover common law damages against an employer has been increasingly limited to the point where, commonly, no rights exist.
If the threshold is not met, there is no right of recovery of any common law damages against the employer. This outcome has prompted the argument that there is no entitlement to take proceedings against the employer.
The Court of Appeal has consistently rejected this argument. Once established that an employer owed a duty of care that was breached, causing loss to the plaintiff, the entitlement was established. The right to recover damages was irrelevant: A worker who does not join the employer cannot be compelled to undergo assessment.
No compensation in the nature of aggravated or exemplary damages is recoverable through claims made under the statutory schemes: Damages under these heads remain available in the limited categories of personal injury claims that are not dealt with under these schemes. It is very important to distinguish between aggravated and exemplary damages.
In the past, courts have tended to award a single sum to account for both types of damage but it is now accepted that the better practice is to distinguish between amounts awarded under these heads and to provide reasons in each case. In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages.
The difference is that in the case of aggravated damages the assessment is made from the point of view of the Plaintiff and in the case of exemplary damages the focus is on the conduct of the Defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation.
The award of damages under these heads is discretionary and caution is required to ensure that the circumstances in which they awarded are appropriate. There is no doubt that if a plaintiff is saying: This is relevant to the question of whether or not exemplary damages should be awarded, and, if so, how much. Accordingly, the position in Australia is that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed, and in accordance with the authorities in this Court exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed.
Her Honour concluded that conviction for assault and the imposition of a bond was a substantial punishment such that exemplary damages were not warranted on this basis. Her Honour did, however, accept at  the other basis for the award of exemplary damages, namely, that the manner in which the appellant defended the claim for damages was unusual in the sense used in Gray v Motor Accidents Commission.
Damages under this heading may be awarded to a plaintiff who suffers increased distress as a result of the manner in which a defendant behaves when committing the wrong or thereafter. He expressed serious doubt about when they might be claimed in negligence actions or about the need for such damages when elements such as injured feelings and distress could be dealt with in an award for general damages.
In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
Exemplary damages are awarded as a form of punishment: They may be awarded for a tort committed in circumstances involving a deliberate, intentional or reckless disregard for the plaintiff and his or her interests. The objects of the award may include condemnation, admonition, making an example of the defendant, appeasement of the plaintiff in order to temper an urge to exact revenge, or the expression of strong disapproval. It may include elements of malice, violence, cruelty, high-handedness or abuse of power.
The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen. The award of exemplary damages is rare in actions for negligent conduct. Damages were assessed by reference to the sum paid for the dental services and interest.
Although required to be proportionate to the circumstances, in an appropriate case, exemplary damages may exceed compensatory damages: The legislation introduces a regime for assessment of claims that is similar to that provided for in relation to common law claims for workplace accidents. The Parliament may well not have been prepared to exclude liability for exemplary damages, even in cases of relatively minor physical or mental impairment, where the conduct of its officers, for which it accepts vicarious liability, demonstrates egregious disregard of the civil rights of its citizens.
The court concluded, however, that aggravated damages were not available to an offender in custody. Aggravated damages were designed to deal with matters such as humiliation and injury to feelings and provided compensation for mental suffering that fell short of a recognised psychiatric illness. In that sense, in contrast to exemplary damages they were compensatory.
An intentional tort is described as the intentional infliction of harm without just cause or excuse. The presence of an intention to cause harm is central to the imposition of liability. The tort frequently involves conduct that results in criminal as well as civil liability, although it extends to conduct that causes harm to reputation, trade or business activity. One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances.
The concept of an intention to cause harm, in the context of the law of negligence, has been the subject of a degree of judicial consideration and much academic consternation concerning the extent to which intentional conduct can be described or pleaded as negligent.
The exclusion of intentional torts from the strictures of the Civil Liability Act has also generated judicial scrutiny of this class of tort. Section 3B 1 a provides:. The provisions of this Act do not apply to or in respect of civil liability and awards of damages in those proceedings as follows:.
Part 7 Self-defence and recovery by criminals in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and. The attraction of this provision is that, if the wrong of which a plaintiff complains can be brought within its scope, the constraints on damages contained within the Act can be avoided, with the exception of those relating to the recovery for gratuitously provided care services.
Damages in claims of intentional torts are at large, with the exception of those claimed for voluntarily provided care. They may therefore range from a nominal amount, where a plaintiff is unable to establish actual damage, to substantial damages on all heads for personal injury.
Aggravated and exemplary damages are also available in appropriate cases. Application of the provisions of the section has not been straightforward, issues to date encompassing the following. It is in this area that incongruity arises in the context of the law of negligence. He said an action for the negligent infliction of harm was not barred because of the intentional act of the person causing the harm. He said it was meaningless at least in the civil sphere to speak of an assault that was consensual.
The difficulty created by the failure to plead separately the allegations of negligence and assault is most clearly demonstrated in claims of medical negligence where the question of consent to treatment arises. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed.
Consent may be vitiated by fraud, misrepresentation, treatment that materially differs from that to which the consent was given or the improper purpose for the provision of the treatment. The motive for the provision of medical treatment is relevant to the issue of whether consent was obtained through fraud or misrepresentation or for an improper purpose. The majority view in that case was that it was therefore unnecessary to consider further whether the practitioner acted fraudulently.
There may be circumstances where more than motive exists for misconduct. A person who enters land within the scope of his or her authority does not necessarily become a trespasser because he or she has some other purpose in mind.
Thus improper purpose, even if it falls short of fraud is relevant to the issue of whether medical treatment was outside the terms of any consent.
It is not necessary that the plea of trespass to the person or assault contain a specific allegation of absence of consent. The plea itself is sufficient under the rules of common law pleading to amount to an allegation of non-consensual conduct: White v Johnston , Barrett JA. It is the second of these requirements that presents the greatest challenge to litigants. It is not necessary that the intended injury be physical.
Spigelman CJ thought this was sufficient to establish that the officer acted with the intent to cause injury namely an apprehension of physical violence. It is not necessary that the intentional act be criminal in character. He noted, however, that in Dean v Phung , above, whilst the primary intention was that of monetary gain, the dentist was found to have the intention to cause harm sufficient to meet the requirements of the section because at the time of giving the relevant advice he knew that the treatment proposed was unnecessary.
That role is that, where the other elements of the tort are made out, a finding that the defendant intended the consequences which came to pass will be sufficient to support an award of damages against the defendant in respect of that consequence.
It will not necessarily be sufficient that the wrongdoer intended damage different in kind from that which occurred … That is to say, it will depend upon the relation of that which the wrongdoer intended to the consequences which actually resulted. The issue of whether the intended injury must be physical so that it did not extend to psychological injury has been disposed of by the principle that the wrongdoer intends the harm that is the natural and probable consequence of the conduct.
In TCN Channel Nine Pty Ltd v Anning , above, however, the Court of Appeal rejected the claim in the absence of evidence that the mental trauma claimed by the plaintiff amounted to a recognised psychiatric disorder.
Humiliation, injured feelings and affront to dignity resulting from trespass, the court said, were compensable through the means of aggravated damages. He approached the issue from two perspectives. He said the onus was at all times on the plaintiff to prove that consent was vitiated by fraud because:. After examining competing views he rejected the argument that the onus of proof was on a defendant who pleaded consent to a claim of assault and battery or trespass to the person.
His major reason for doing so was to provide coherence between the criminal and civil law. It does not strike me as jarringly wrong for a civil plaintiff to be obliged to discharge the same burden albeit, only to the civil standard in order to establish a tortious assault and battery. The Court of Appeal held that an employer was vicariously liable in damages, including exemplary damages, where the intentional tort was committed:. He said the employer could not escape liability under the general law by demonstrating that it did not have the intention of its employee.
Damages are compensatory in character. The onus is on the plaintiff to prove the injury or loss for which damages are sought. The plaintiff may recover loss or expense incurred in a reasonable attempt to mitigate. The following are the steps required in the assessment of non-economic loss in accordance with this section: To what extent was it impaired by the injury?
As part of the civil liability reforms, Australian jurisdictions have legislated to preclude awards of exemplary damages in many personal injury claims. Notwithstanding the civil liability reforms, an award of exemplary damages may still be made in property damage claims and for personal injuries resulting from an intentional tort. However, the Court was not prepared to make such an award as it viewed the actions of the manufacturer a having been "careless" rather than "deliberate".
In terms of personal injury claims, New South Wales, Queensland, Victoria, Western Australia and South Australia, have each specifically excluded intentional torts from their civil liability reforms and therefore allow exemplary damages to be claimed for acts of intentional wrongdoing.
An intentional tort is a deliberate action performed with the intent to cause death or injury to another person. For example, in Zorom Enterprises Pty Ltd v Zabow  NSWCA , the New South Wales Court of Appeal held that an employer was vicariously liable for an international assault committed by its employee and awarded exemplary damages for the purposes of punishment and deterrence, both for the defendant and the community at large. In the area of product liability, an intentional tort could occur as a result of a manufacturer deliberately and knowingly placing a dangerous product on the market or not taking remedial action after become where of a defect , which during use physically harms or kills a consumer.
The driver of a Ford Pinto was killed in a collision when the car exploded after a rear-end collision, and the passenger was badly burned and scarred for life. The plaintiffs alleged that the car's design allowed its fuel tank to be easily damaged in the event of a rear-end collision leading to an explosing. Awards for exemplary damages will undoubtedly continue to be rare in Australia.
Such claims however can still be made, although only in exceptional circumstances. What is needed is more than simple negligence or a breach of statute.