LAWS 1203
SEMESTER 1 2000
QUESTION 1 AND 2
MARK: 75 AND 77
QUESTION 2C
If a person pervades the court, on the balance of probabilities, that his/her injuries were caused by D's negligence, the court orders D to compensate P by payment of damages. This system in Australia is a fault-based system, whereby P's injuries must be attributed to another person's fault in order to recover compensation. This fault system has been criticised and it has been proposed that a no-fault compensating system should be introduced.
The argument between the current fault-based compensatory system and a no fault compensatory system is essentially a comparison of the relative merits (or otherwise) of loss shifting (fault, common law, current system) or loss spreading (no-fault). I propose to comment on the perceived failures of the fault system and compare them to a no-fault system.
A) Fault System
The principles underlying an awards for damages were set out in the case of Todorovic V Walker as including "P must prove the injury or loss for which damages is sought was caused by D." The first issue is the argument that there is a high proportion of people who are seriously injured who don't receive compensation as they can't prove any fault. For example, if a driver is blinded by the sun for an instant and veers into a tree - who is there to blame so as the driver can receive compo for his/her injuries?
[indemnity insurance]
Likewise in a situation where a pedestrian is run down by a driver who had just been stung in the eye by a bee - the pedestrian's injuries weren't the driver's fault; there was nothing he/she could do to prevent them. In both cases the victim has suffered injuries through no fault of their own, yet there is no means of recovery. Further to this is the point that even if P can attribute fault to another person, the requirement is that P must prove D's fault - this can raise some problems when the evidence is equivocal, and once again P is left uncompensated.
The second issue draws in the point regarding loss-shifting. Those who argue for the fault-based system argue that this system is essential to deter people from acting in a negligent manner. I contend that in the modern context, this isn't the case. The reasoning behind this is two-fold. Firstly, the presence or absence of fault usually doesn't personally effect the D at all, as the majority of people sue insured for example, in all states except WA it is compulsory for employers to insure against common law liability for workplace injuries to employees - ie. Workers Comp. Act (Act) 1951. Basically, the concept of fault has little, or anything, to do with personal responsibility in practice - the primary practical function of fault is to determine which P's have access to insurance funds and which don't.
Secondly, deterrence. Its been proved that attribution of a civil fault is not deterrence, ie. Frown v Butcher Seabetts.
QUESTION 1B
There are 3 actions available to Paul:
1) Dependant's action for the death of Julia.
1) Negligence action against DHCS
1) Negligence action against Sandman with DHCS liable via personal non-delegable duty.
[3rd one not relevant]
Each will be dealt with separately.
(1) Paul v DHCS
There are 4 steps to a negligence actions, duty and breach, which together, if proved, will result in negligence; and causation and remoteness, which is necessary to prove in order for D to be liable for the negligence and allow P to compensation.
(a) Concurrent Liability
It is arguable that there is multiple possible D's: Sandman and DHCS - where this is the case, P can choose to sue whichever D, but can only recover once: Law Reform Act ss10-13. If a D is found not liable then the other D's can't recover from that person: James Hardie.
(a) Duty
DHCS ("D") is a statutory body which derives its existence, powers and functions from statute. All normal negligence principles apply, only the duty test is modified slightly. The first step is to characterise the situation as an act or omission (failure to exercise power). In this situation, it is arguable that D's failure to inspect was an omission. In a situation where a body allegedly failed to exercise power, P must demonstrate that the body owed an affirmative duty to act: Nagle. In discerning whether the body had a duty to act it is necessary to look to the nature of the power. It is clear that s5 of the Act is permissible power - thus it is necessary to discern whether this failure to exercise a permissive power gives rise to a duty. Factors which go to establishing a duty include a special vulnerability of P: Pyrenes V Day; and budgetary policy considerations: Sutherland. These concepts have been established in a comprehensive test, set out by the case of Crimins:
(1) Was it reasonably foreseeable that P could be affected?
It is arguable that P is certainly foreseeable as a worker in an environment with cooling systems.
(1) Did the authority have the power to protect this person?
It is contended that by the nature of the Act, D had the authority to inspect and maintain P's working environment.
(1) Was P especially vulnerable if D didn't act?
It is arguable that P, as a worker, not unlike the situation in Crimins was vulnerable if D didn't act. Although it's arguable that Sandman was responsible for the premises, D had the management of this particular risk.
(1) Should D have known of the risk to P if they didn't act?
D should've known that a person would be at risk of disease with their statutory duties - it is arguable that its foreseeable that reports on levels may not be accurate so that some level of monitoring should be necessary.
(1) Would an imposition of a duty compromise the policy-making capacity of the body?
D will most likely argue that it was for policy reasons. P could argue that the decision was operational and there were other alternatives to complete failure to inspect. It is contended that this decision was operational in nature and has to do with the putting into place of the policy decision.
(1) Should duty be imposed in this situation?
It is argued that yes - this is a matter of public health and it is essential for a duty to be imposed.
Thus it is argued that there is a duty on the part of D.
(a) Breach
The issue is if reasonable care was taken by D to avoid reasonably foreseeable harm to P: Wyong V Short. A reasonably foreseeable risk is anything not far-fetched or fanciful: Wyong. In this case, the risk to P is foreseeable - it is foreseeable that a company would fail to comply with statutory orders this allowing contamination of the cooling system. In looking to the reasonable care, it is arguable that the risk was particularly required: Paris V Stepney. D will most likely argue that the probability of the risk was so small that they could disregard it: Bolton V Stone. Its contended that the probability is higher than small of a company not complying. In addition, its argued that breach is simply proved by the fact that there was a duty for D to act, they didn't, thus have breached that duty.
(d) Causation
The issue is if P's injuries were caused by D's negligence. P must show that D's negligence was a material and operative cause of the injuries: March V Strowere. It is quite apparent that D's failure to inspect constitutes a material cause of the injuries and it's unlikely that this is an issue.
(e) Remoteness
Whether the damage/injury was reasonably foreseeable: Wagon Mound. It's argued that this isn't an issue, as the failure to inspect could lead to infections and foreseeably injury.
(f) Damages
P has proved negligence and thus D must compensate P by means of damages. There are 2 types of damages, special and general.
Special
Special damages are pecuniary losses only which have already occurred and which can be proved with relative precision. This P could claim lost earning capacity (LEC) and medical costs up to the trial for what he's already spent.
General
Speculative damage, all non-pecuniary and future pecuniary.
Cases: Paff V Speal.
Pecuniary
LEC - The court compensates P's pre-earning capacity with his post-earning capacity and awards damages to represent the difference - this can be a total or diminished loss. On the evidence given, P's loss is total and thus he would be awarded compo for the loss of the asset of his ability to earn based on his employment history - at Sandman he earned $30,000. It is likely that he'll be awarded this amount calculated on net-post tax income less the expenses (ie. transport) he'd now not incur: Cullen V Troppell. Courts also remove approx. 15% from LEC for vicissitudes: Sharman V Evans.
Lost Years - the length of compo for LEC is measured against P's life expectancy. As P is expected to die 20 years earlier than prior to the injury, the LEC will be reduced by the amount P would be expected to spend on his maintenance for that 20 year period: Sharman.
Medical Rehabilitation - P will be compo'ed for all his reasonable medical costs and rehabilitation - physio costs.
Discount rule - 3% is deducted from lump-sum pecuniary losses for tax, inflation and investment: Todorovic.
Collateral Sources - the Raiders donation of $5000 is a collateral source. It is arguable that it is charity, and as such, is an additional benefit rather than a compensatory benefit and thus won't be set off against the amount.
[Why?]
P won't recover for Julia's voluntary services as he doesn't require care - there is no need here: Van Gervan.
Non-Pecuniary
P will be compensated for pain and suffering, assessed subjectively. P will also be compensated for loss of amenities - arguable most money will come here as football was a major enjoyment and now can't do it: Sharman (subjective assessment).
P will get one-off lum-sum pament for loss of expectation of life.
2) Dependant's Action
Dependant's of the deceased can bring a statutory action against D who wrongfully caused the death of P: Compo Fatal Act. P is a relative as required under s4(2). This leaves pecuniary only. P must show:
(a) Wrongful death
Very wide definition: Woolworths. Here can be argued is the failure to maintain checks on cooling system as discussed.
(a) Causation
The death must be caused by the wrongful conduct - however here, foreseeability is not an issue - any link is sufficient: Haber V Walker. Arguable that as J was distressed by D's negligence, then this provides causal link.
(a) Right of action.
J must've had a right of action at time of death: Harding V Lithgow. Arguable that J would've had an action for negligence for her psychiatric injuries.
Damages
P can only claim for reasonable pecuniary losses: Compo Act s10. Funeral - yes: s10. Look at degree of dependancy, duration and any reducing factors: Parker V Cth. Paul may get remarried - wouldn't get much as not much dependancy.
Could recover for J's duties: Nguyen.
3) P V Sandman (DHCS)
DHCS can be liable for S's negligence by means of personal non-delegable duty (PNDD). This is where the task is delegable but duty isn't. Test - Burnie Port:
(a) Special vulnerability of P
(a) Assumption of supervision, care and control of premises by D - yes have as Dr Zuagio (??) wrote letter ordering company to inspect and thus arguably assumed control and management of cooling systems.
Duty - Duty under statute.
Breach - Didn't live up to statute, therefore, breached.
Causation - obvious
Remoteness - not too remote
Damages - Common Law.
QUESTION 1A - JULIA v DHCS
Julia's estate can bring a survival of action claim against D. Actions can survive P's death: Law Reform Act s4. The action is the same as the common law negligence action, only modification is the compo the estate can recover.
Concurrent liability here as per Paul's action.
Was P reasonably foreseeable: Donohughe.
Duty
Arguable belonged to Class (relatives affected by injury): Chapman, causation proximate, Sutherland.
Breach
Was J's psychiatric illness a risk that should've been reasonably foreseeable - the risk is arguably foreseeable as its not far-fetched or fanciful: Wyong. It is most likely that this action will fail at this point due to factors such as probability and gravity. However, assuming that it succeeds this allows the action to continue.
Causation
The issue is if P, by suiciding, broke the causal connection as suicide is a voluntary human act: Haber V Walker. However, when Haber is looked to, the court states that the suicide could be regarded as an event which wasn't voluntary as P wasn't in the right mind. It is contended that this is the case here and J's suicide doesn't break the causal connection.
Remoteness
Psychiatric injury is reasonably foreseeable as a type which could result from negligence: Wagon Mound. Manner of incurring is irrelevant: Hughes.
Contributory Negligence
Possibly D may argue that P was contributory negligent by continuously nursing Paul when he didn't need it, thus putting himself in a psychiatric situation. Contributory negligence will operate (if successful) to reduce the damages. If P has contributed then damages shall be reduced commiserate with the share of responsibility for the injury: Law Reform Act s15(4).
Three steps for D to prove:
(1) Did P fake care of self? Arguable not have.
(2) Did lack of care contribute to the injury? Arguably yes have.
(3) Apportionment is required to be "just and equitable": s15(4)(a) - compare culpability: Perrington V Novis.
Damages
As argued in causation, it is contended that D caused the death. As this is a survival of actions case, as D caused death s5 Law Reform governs damages: Estate can recover
- P's medical and LEC for period between death and injury
- Funeral costs (reasonable)
- No lost years s5(c)(iii)
- No non-pecuniaries or voluntary services.