Assuming that [defendant] owes [plaintiff] a duty of care will he be liable to him in

negligence?
Has [defendant] breached his duty of care to [plaintiff]? Identify risk?
Whether [defendant] has breached its duty to [plaintiff] requires an assessment of
the standard of care owed to [plaintiff] in appreciating the risk. In particular it
entails questions of who is the reasonable person in this context. [defendant]
would not have failed to take precautions unless, in the circumstances, a
reasonable person in [defendant]s position would have (CLA s 5B). Here a
reasonable person in [defendant]s position should have taken precautions to
[insert precaution here].
The standard of care required by a reasonable person is applied objectively with no
allowance for the defendants individual idiosyncrasies.
Mentally ill
Thus as [defendant]s [mental illness/disability] is a personal
& disability
idiosyncrasy, it will not attract any special provisions or
exemption from the ordinary standard of care other than that of a
reasonable person. (Carrier)
Children
However as childhood is not a personal idiosyncrasy, in the
special circumstance of children this standard is lowered.
[defendant] is not assessed against a reasonable adult but
against a reasonable child of the same age and experience.
(McHale)
Learners/no Upon recent decisions in overturning Cook v Cook, the HCA
vices
decided inexperience is a personal idiosyncrasy of the defendant.
There will be no special provisions made for novices other than
the standard of care of a reasonable [actor doing activity].
(Imbree)
House
No special provisions are made for house owners. (Neindorf)
owners
Professional In common law, the standard of care is raised for [insert
s/professing defendant profession eg:doctor] as they fall under the category of
to having
professional negligence (Rogers). However, CLA s 5O modifies the
that special common law by reinstating the Bolam principle, inviting the
skill
opinions of peer professionals unless their opinions are irrational
or contrary to written law. That is a professional does not incur
liability if it is established that the professional acted in a manner
at the time was widely accepted in Australia by peer professional
opinion as competent professional practice (CLA s 5O). Thereby,
as the experts opinion is of a responsible, reasonable and
respectable body it does not necessarily raise the standard of
care as they would testify that it is normal for [defendants
profession] to not [insert the possible breach].
(note: this only applies for treatment and diagnosis not for
warning or advice CLA s 5P)
Duty to
The Bolam principle does not apply to ... the giving of (or the

warn:
Material
Risks

Actual
knowledge
of special
susceptibilit
y

failure to give) a warning, advice in respect of the provision

by a professional (CLA s 5P). This effectively reinstates the
Bolam principle which had been rejected at common law by the
High Court in Rogers 1992 and Naxakis 1999. It is likely that
[defendant]s role be regarded as a professional, thereby the
standard of care is raised for [defendants profession] to that of a
reasonable skilled professional in the circumstances (Rogers). The
test to be used is that a [professional eg: doctor] has a duty to
warn [plaintiff] of a material risk inherent in the [activity eg:
proposed treatment]. A material risk is one which A) a reasonable
person would have regarded as significant and B) a reasonable
[professional] would have been aware that this patient will attach
significance. Thus as [plaintiff apply etc]
However this if the defendant had actual knowledge of the
plaintiffs special susceptibility one must cater for this. Thus the
standard of care would be raised to what would a reasonable
[person/position] have done, knowing that [defendant] had
[special susceptibility] (Paris)

Secondly, one would analyze whether it was reasonably foreseeable that

[defendant]s conduct involved a risk of harm to [plaintiff] or a class of persons
including [plaintiff]. The [insert damage] is not far-fetched or fanciful (Shirt) and
neither is it not insignificant (CLA s 5B(1)(b)). In the context of this statement a
foreseeability does not call for an examination into likelihood of the risk
occurring.
As the risk was not far-fetched or fanciful we proceed to determine the content or
standard of care by asking what would a reasonable person do by way of response
to the risk. One must apply prospectively (Vairy) the calculus of negligence in
accordance with Shirt and CLA S 5B(2) principles by balancing the four factors:
probability and magnitude against the social utility and burden of the risk of harm.
Authority!
- There was a [in/significant/considerable/low] probability of the [insert damage]
since [insert reasoning]. (Bolton probability RISK: going out of the ground and hitting somebody)
- However/moreover, the magnitude of the [damage] was [high/low] [reasoning].
- The burden, referring to the expense, difficulty and inconvenience to take
alleviating action would be [high/low] in this case as [reasoning].
- Furthermore the social utility of [the activity] is [high/low] as [reason]. (or as
[activity] is not a public activity it does require much discussion into its social
utility)
Combining the probability and seriousness of harm, it [outweighs/is outweighed
by] the [large/small] burden and social utility of taking precautions to minimise the
risk as [reasoning]. Thus (does/nt justify X) and the [defendant] did/did not breach
its duty of care.
Has [defendant] caused the harm to [plaintiff]?

The onus is on [defendant] to prove on a balance of probabilities balance of

probabilities whereby anything greater than 50% is treated as certain. The first
causation factor (CLA s 5D(1)(a)) is factual causation that [defendant]s negligence
was a necessary condition or a sine qua non for [plaintiffs injury].On the basis of
the but for test (Barnett) tempered by common sense (March), but for [insert
negligent act] [plaintiff] would [not/still] have sustained the [injury] since [insert
reasoning]
(If necessary) Furthermore a clearer analysis is obtained if one aligns the
immediate case into a [] causation category.
Multiple/successive
Successive tortfeasors must take the plaintiff as he finds
causes
him and will thus be responsible for only the additional
(fix on but for)
loss. (Baker)
connects with next
Material contribution
When applying the established principles the
& cumulative
defendants negligence cannot, (because of the
causation (exception
[reasoning eg: inadequate state of scientific knowledge],
to but for)
be found to have been a necessary condition or cause of
[plaintiff]s loss, but where it is nonetheless appropriate
that defendant be held liable, this may be categorized
as an exceptional case and s 5D(2) applies.
In such circumstance of [multiple/cumulative] causes
the material contribution test is applied. That each
defendant would be liable as long as a material
contribution is made and no reasonable steps were
taken. (Baker & Fairchild)
Novus?
A novus actis is an act, which cuts the chain in causation and begins a new chain
of causation. An intervening act is 1) a (sane) voluntary human action that was not
reasonably foreseeable or 2) a totally causally independent act a coincidence
(Haber).
Novus yes

1) [3rd party]s [act] was a voluntary act as [reasoning]. Moreover,

the [act] is extravagant or inexcusably bad in the sense that no
reputable professional will do so, it would not be foreseeable.
(Mahony)
2)
If an event is determined to be a novus actus, [the original
defendant] will not be held liable for its consequences.

Novus
no

1) [3rd party]s act was not voluntary in the sense that it was not of
the [3rd party]s free choice (Haber). OR merely a coincidence and

Novus
yes
But
Chain
unbroken
Factual
analogy

the injury occurs in the ordinary course of things (March). OR As

the act was not extravagant or inexcusably bad (Mahony), as
[defendant] injured someone it is reasonable to foresee that the
injury may be further exacerbated through negligence in the
administering of treatment (Mahony) OR It can be foreseen that if
injured/in emergency, someone will rescue you
Thus there would be no novus actus and the chain of causation
remains unbroken. The first defendant [defendant] would therefore
will be liable for all the harm flowing from the original breach of duty.
Even if [3rd partys] conduct amounted to a novus actus, it would not
however break the causal chain if [defendant] should have realized
that a third person might so act and the voluntary act of [insert act]
produced intended/known consequences. (Chapman). The novus
actis was just part of what was expected and therefore did not truly
break the chain and [first defendant] will be liable for all the harm
[insert harm] flowing from [insert original breach of duty].
Voluntary act needs to be a conscious act of a sane person (Haber)
The courts consider it foreseeable that an injured plaintiff
undertaking medical treatment would be worse off. Therefore, the
further injury sustained by [insert plaintiff] occurs in the ordinary
course of things. (March) The causal chain will remain unbroken.
(Mahony)

Remoteness of damage
Causation analysis secondly depends on remoteness. Remoteness acts as a limit
on causation in questioning whether it is appropriate for the scope of
[defendants] liability to extend to [plaintiffs injury] (CLA S 5D(1)(b)). Furthermore,
the courts consider whether or not and why responsibility for the harm should be
imposed on [defendant] (CLA s 5D). This is assessed by the reasonable
foreseeability of damage (Wagon 1) of a reasonable person (Wagon 2). It is not
necessary to foresee the exact nature of the damage which in this immediate case
is [insert the particular damage]. It is sufficient that this kind of damage such as
[insert the kind of damage] to [plaintiff] would have been reasonably foreseeable
to [defendant] regardless of its manner or extent (Hughes). Thus one can conclude
that [defendant] did/did not cause [plaintiffs damage].
Eggshell skull rule
Although the exacerbation of [plaintiff]s injury, due to his inherent susceptibility
of [disease], could not be reasonably foreseeable. As long as the kind of injury
could be reasonably foreseen, we will apply the Eggshell Skull rule. As
established above, [plaintiff]s kind of injury was foreseeable and we must take
him as he is. Therefore [defendant] would be liable for any additional damage of
a foreseeable kind suffered by [plaintiff] with the special vulnerability.
(Stephenson).

includes the environmental factors impinging upon the victim, including beliefs
and reactions as well as his capacities; attributes, physical, social and economic.
(Nader
includes cultural settings, and psychiatric damage (Kavanagh Akhtar)
CONCURRENT LIABILITY
Vicarious liability
Vicarious liability is a form of concurrent liability where an otherwise blameless
defendant would be liable for third partys negligence. Whether vicarious liability
exists, such that [plaintiff] can recover damages from [employer] for the
[employee]s negligent act [of insert act] is firstly contingent on whether
[employee] was actually an employee. This is determined by the enterprise risk
test where one looks not only at control (Stevens) but by examining totality of
the relationship. (Vabu).
-

skilled/special labour? ( indep.)

uniforms = emanation of employer ( emp.)
finances self-managed ( indep.) or superintended ( emp.)?
who supplies tools & equip?
control over manner of work
conduct of dude = conduct of enterprise?
control over appearance eg. scruffy hair
language eg. contract for service

Balancing out these factors one may conclude that [employee] was/not an employee and
thus/not an independent contractor.

However if I am wrong and the court finds otherwise, one would look at the second
element.
Secondly, [employer] would only be liable where the [defendants] wrongdoing was
in the course and scope of employment. (Lepore) This is satisfied/not satisfied as
[insert reasoning]. However, the negligence method in which [plaintiff] undertook
[insert job] does not exclude [company] from liability. Thirdly, the victim [insert
name] was injured by the employees wrongful act.
Type v.l?
Un/authorised

Although the [employee]s act was unauthorized or

negligent or did it in the wrong manner, this is irrelevant
and the [employer] would nonetheless be liable
OR Criminal act of the employee was NOT CLOSELY
ENOUGH CONNECTED WITH THEIR AUTHROIZED DUTY
FOR THEIR LIABILITY. Simply an independent act.
As/it is important to note, the negligence method in which
[plaintiff] undertook [insert job] does not exclude
[company] from liability. (Salmond)

necessary part of the job what he was doing

too far removed from the authorized act
Salmond Test:
An employer is liable even for unauthorized acts if they are so connected
with authorized acts that they may be regarded as modes (although improper
modes/ways) of doing them.

Employees
intentional
wrongdoing no

Crim. Conduct
during employment
no
Conduct outside
employment: on a
frolic of their ownno
type
employees intentional
wrongdoing
crim. conduct during
employment
conduct outside
employment: on a frolic of
their own
exercising independent
discretion
exercising statutory
authority
negligent performance of
employment, even if in
breach of workplace rules

But an employer is NOT responsible if the unauthorized and wrongful act is not
so connected with the authorized act as to be a mode/method of doing it,
but is an independent act.

wrongdoer was an employee of the employer and the wrongful

conduct was committed through the course of employment, even if
the act was criminal, the employer would still be vicariously liable for
the actions of the employee. However, if the criminal act which
occurred in the scope of employment was not committed through
negligence but was intentionally committed by the employee, then
the employer would not be vicariously liable for the criminal act.
(New South Wales v Lepore.)

(Deatons)
As [Defendants] conduct was a criminal conduct,
[company] would not be vicariously liable. (Lepore)
[Defendants] conduct was not within the scope of his/her
employment as [reasoning] and was on a frolic of his/her
own. (Deatons) Therefore, [company] would not be
vicariously liable for [defendnts] wrongdoings.
vicar. liab?
no (Deatons)
yes (Lepore)
no (Lepore)
no (Bugge)
no (Oceanic)
no (Cubillo)
yes (Rose)

1) Passion and resentment: where an employee carried out the actions through
emotions which was not within the scope of employment. (Deatons v Flew
(1949)). (Barmaid.)

(2) Where the conduct was an unconnected act from the employment
(Joel v Morison (1834)) (Employee visited a friend when delivering something.)
(3) Beyond scope of duty (Illkiw v Samuels [1963]) (bus conductor.)However,
it is important to note that if in the employee had to take breaks as a result of
completing the task inherent in their employment, then the employee is not
considered as being on a frolic of his own. (Harvey v R G O'Dell [1958]).
It is also to be noted that the CLA s 5Q states that breach of a non-delegable duty
is determined as if it were vicariously liability. One must note that if [companys]
civil liability for a tort is limited or excluded, then its vicarious liability for
[employee] is also limited. (CLA s 3C) Thus, one can tentatively conclude that
[company] was/was not vicariously liable for the [employees] wrongful act.
[plaintiff] can/cannot recover damages for this as well.
Non-delegable duty
At common law non-delegable duty is a form of vicarious liability whereby one
person is held liable for the wrongdoing of another. The duty is non-delegable in
the sense that the defendant is obliged to ensure that the task is done carefully,
and if the contractor fails to exercise reasonable care then the defendant will be
liable for a breach of his non-delegable duty of care (Hughes). A non-delegable
duty arises because [plaintiff] and [defendant] enters a special relationship
whereby the [plaintiff] is vulnerable to the control exerted by [defendant]. (Kondis)
is it within course of employment? (CLA s5Q) determine using factors:
i) central element of control as to the safety/property of others (Burnie)
ii) vulnerability if precautions arent taken (Burnie)
iii) special dependence on def to take reasonable precautions (Burnie)

Here, [defendant] owes a non-delegable duty to [plaintiff] as this relationship fits

into one of the Kondis categories of [hospitals/schools/employer/-ee/adjoining
landowners]. It is to be noted that a non delegable duty is subsumed by the
principles of ordinary negligence. (Burnie) Under those principles, [defendant]
owes a duty of reasonable care to avoid a reasonably foreseeable risks such as the
risk of [insert from case] in the present case to [plaintiff]. In addition, CLA s 5Q
treats a breach of a non-delegable duty as if it were vicarious liability. Thus, one
can conclude that [defendant] owes a non-delegable duty to [plaintiff] for
[delegates] negligence. However, s 3C provides that if [delegates] liability for the
harm is limited or excused then [defendant] will obtain the benefit of the limitation
or exclusion.
NDD is NOT EXTENDED TO intentional criminal behavior (Lepore)

DEFENCES

The onus falls on the defendant to plead and establish defences in order to prevent
liability from arising or reduces [plaintiffs] entitlement to damages. The onus falls
on the defendant to plead and establish defences on balance of probabilities.
Contributory negligence
Contributory negligence involves a failure by [plaintiff] to take reasonable care for
his/her own safety that contributes to his/her damage. The principles and
standards applicable in a claim of contributory negligence are the same as those
applied to determine the negligence of the defendant. (CLA s 5R(1))
Normal

Intoxicate
d cases

The extent of [plaintiffs] failure to take reasonable care for his/her own
safety is objectively determined by the degree of departure from the
standard of care of a reasonable person in the position of the plaintiff
(CLA s 5R(2)(a)). The issue is to be determined in the light of what
[plaintiff] knew or ought to have known. (CLA s 5R(2)(b)). In the
present case, the courts would consider whether a reasonable person in
the position of [plaintiff] would [do whatever e.g. not wear a life jacket]
knowing that [it was dangerous for him e.g. knowing that he could not
swim]. Considering the facts, the question would be answered in the
negative/affirmative and contributory negligence would/would not
become a partial defence.
[Plaintiff] was intoxicated as he was under the influence of alcohol/drug
(whether or not for medical purposes or lawfully undertaken) (CLA s
48). Contrary to common law, the CLA provides that the fact that
[plaintiff] was intoxicated does not increase nor effect the standard of
cared owed by [defendant] (CLA s 49). Therefore [the fact that
defendant eg: knowledge or supplied the drugs] would be irrelevant
and there would be no special standard of care owed. In light of
[plaintiffs] intoxication, the CLA provides that there would be no
damages awarded unless [plaintiff] can prove objectively that the
intoxication did not in fact contribute in anyway to the injury (s 50(2)).
In the present case this is un/likely that a reasonable sober person in
the position of the plaintiff would have done [add act eg:jump in pool]
and have contributed to his injury. However (if the court finds
otherwise) [plaintiff] would be still be presumed to be at least 25%
contributory negligent (CLA s 50(3)) unless it is proven that the
intoxication did not contribute at all to the injury.
(note: s 50 would not apply if the intoxication was not self induced.
(CLA s 50(4))

no CN for:
agony of the moment
despite Ps conduct = departure from
s.o.reasonable.c.
Caterson (train)
Law RECOGNIZE THIS when looking it
after it, you are faced in the sudden
emergency, and no time to think of

failing to
anticipate neg.
of others
workplace
Grant
MVs

momentary lapses in repetitive

work
Ruprecht (Gibbs)

employer provides
unsafe system of work
Wiegold
Bankstown Foundry
Czatyrko

other alternatives. Moments in

emergeny must act reasonably but
not perfectly,

Upson

eminent reasonable risk

to take
must act such that your action
falls within one of the reasonable
possibilities

Voluntary assumption of risk (common law defence)

The voluntary assumption of risk is a complete common law defence where a
plaintiff who voluntarily assumes a risk of injury cannot recover damages in
respect of loss caused by its materilisation. The defence has two elements. Firstly,
it entails a subjective evaluation on whether the plaintiff had full knowledge of the
risk. Here, [plaintiff] was aware of the risk [insert risk] as [reasoning]. Secondly,
with such knowledge the plaintiff must freely and voluntarily proceed with the
conduct regardless. (Carey)
If yes to both: In the present case, [plaintiff] would/would not have agreed to the
risk as [reasoning].
If yes to knowledge but no to accept: However, knowledge of the risk is not itself
sufficient to make out the defence as [plaintiff] had not agreed to run to risk.
Therefore, [defendant] would not be able to evoke volenti.
note: If the plaintiff was intoxicated he could not have fully appreciated the risk
and agreed to run it regardless.
- free & voluntarily: any pressure non voluntary?
- Narrow specific risk need to foresee. P might not have foreseen.
Assumption of risk (CLA)
CLA s 5F
Obvious risk
look at
act

An obvious risk is defined as one that would have been obvious to a

reasonable person in the position of [plaintiff]. (CLA s 5F(1)) As the
risk is obvious to a reasonable person, [Plaintiff] is presumed to have
been aware unless he/she can prove on the balance of probabilities
that he/she was not aware of the risk. (CLA s 5G(1)) This test is
applied objectively. Here, [plaintiff] could/could not have proved that
he/she was not aware of the risk as [reasoning]. Furthermore,
[Plaintiff] does not have to be aware of the precise nature, extent or
manner of the risk which in this case was [insert risk the
materialised]. It is sufficient that [plaintiff] was aware that this type
or kind of risk would occur. (CLA S 5G(2))
Duty to warn
There is no proactive duty to warn [plaintiff] of an obvious risk. (CLA s

5H(1)) However, this section does not apply where:

[plaintiff] has requested for advice or information about the risk from
[defendant] (CLA s 5H(2)(a))
the defendant is required by written law to warn [plaintiff] (CLA s 5H(2)(b))

[defendant] is a professional and the risk involves death or personal injury

to [plaintiff] from the provision of his/her professional service of [insert
service e.g. medical treatment].

Inherent risk

Dangerous
recreational
activity

An inherent risk is one that cannot be avoided by the exercise of

reasonable care and skill. (CLA s 5I) As [insert risk] is something that
is inherent in undertaking [insert activity], it could not be avoided by
[defendant] in the exercise of reasonable care and skill.
Therefore, [defendant] would not be liable for the
materialisation of this inherent risk.
Since [defendant] is a professional however, this section does
not exclude liability in connection with a duty to warn of a risk.
(CLA s 5I(3))
[Insert activity] is defined to be a recreational activity as it is a sport
engaged for [enjoyment/relaxation/leisure] and engaged in at [insert
place-eg public open space]. (CLA s5K) A dangerous recreational
activity is defined as a recreational activity that involves a significant
risk of physical harm. (CLA s 5K) As to whether a recreational activity
may dangerous would be determined by reference to the particular
activities actually engaged by the plaintiff at the relevant time.
(Fallas) Considering the present case and in particular the fact that
[insert something that would make it dangerous eg time of day], the
[insert rec activity] carried with it a significant risk of physical harm
and, therefore, was a dangerous recreational activity. s 5L excludes
liability for materialisation of an obvious risk including [insert obvious
risk] from the present case of a dangerous recreational activity. This
is an objective test and this section applies whether or not [plaintiff]
was aware of the risk. (CLA s 5L) Therefore, [defendant] would/would
not be able to use this defence to prevent liability from [plaintiffs]
injury.
Risk warnings for Recreational activity
Where [defendant] has placed a risk warning of [insert warning],
he/she would not be liable. (CLA s5M) Whether the risk warning is
adequate would be tested objectively and it applies regardless of
whether [plaintiff] received or understood the warning. (CLA s5M(3))
Therefore, [defendants] liability [is/is not] excluded.

GOOD SAMARITANS
[Defendant] is defined to be a Good Samaritan as he/she, in good faith and without
expectation of a reward, came to the assistance of [plaintiff] apparently injured/at
risk of being injured of [insert from case]. (CLA s 56) Although [Defendant] was

negligent in [doing whatever] and caused [plaintiff] harm, [defendant] would not
be liable in respect anything done in an emergency. (CLA s 57(1)) Therefore,
[defendant] can raise this defence and exclude his/her liability.
(Exceptions)
Defendant
caused the
injury
Care or skill
impaired by
alcohol or
drugs
Impersonat
ed a health
care or
emergency
worker

As [defendants] negligent act/omission caused the initial injury/risk of

[insert from case], he/she would not be protected under the provision.
(CLA s 58(1))
[Defendants] ability of a Good Samaritan to exercise reasonable care
and skill was significantly impaired by reason of intake of
[alcohol/drug] and as a result failed to exercise due care and skill
which resulted in [plaintiffs] injury. Therefore, [defendant] would not
be protected under this provision. (CLA S 58(2)(b))
[Defendant] impersonated:
Health care worker
Emergency services worker
Police officer
Falsely represented that he/she had skills/expertise in
connection with [insert type of emergency assistance]
Therefore, [defendant] would not be protected under this provision.
(CLA s 58(3))

VOLUNTEERS (look at cla for definition)

As [defendant] was working for a community organisation out of good faith, he/she
is defined to be a volunteer. (CLA s 60) Although [Defendant] was negligent in
[doing whatever] and caused [plaintiff] harm, [defendant] would not be liable in
respect of doing community work. (CLA s 61). Therefore, [defendant] is protected
by this defence and could claim indemnity.
Exclusions
Criminal acts As [defendant] was engaged in a criminal offence, he/she would be
protected under this provision. (CLA s 62)
Intoxicated
[Defendant] was under the influence of [insert drug/alcohol] and as a
volunteer
result failed to exercise reasonable care that caused [plaintiffs]
injury. Therefore, [defendant] would not be protected under this
provision. (CLA S 63)
Acted
[defendant] knew/ought to have known that he/she was acting
outside
-outside the scope of the organized activities for the [insert
scope of
company] OR contrary to instructions. Therefore, [defendant] would
activities or
not be protected under this provision. (CLA s 64)
contrary to
instructions

DAMAGES
Before the analysis of damages, it is important to note that there are several types
of damages including compensatory, exemplary punitive and aggravated.
However, CLA s 21 precludes the awards of damages for all of these except for the
first category, compensatory. The basic principles behind [plaintiffs] damages are
as follows (Todorovic):
1. restitutio in integrum, the final amount is that of which puts him/her back
into his/her pre-injury state
2. the damages are in the form of a lump sum, once and for all
3. [Plaintiff] can do anything he/she wants with the money
4. [plaintiff] has the onus of proving his/her injury
To clarify and to avoid double compensation, it is easier to categorise [plaintiffs]
damages into relevant heads of loss. (Teubner)
Category A economic loss (special)
1. [plaintiff] has suffered past and future loss of earning capacity.
i. The living and maintenance expenses for the period would have to be
deducted including the ones for his/her lost years. (Sharman)
ii.
If he/she had a child, childcare expenses would not be required to be
deducted (Wynn)
iii.
After considering the above points i. and ii. The loss of earning capacity
equals the annual wages up to the time of trial minus any present
earning capacity [insert ps profession] or qualified by his remaining
working years including his lost years (Wynn)
iv.
The final amount is limited at three times the NSW average weekly
earnings currently at $220000 even though he was a [insert
profession]
2. Then however this lost of earning capacity must be adjusted by the
percentage possibility that the events might have occurred but for the injury
i.e. the vicissitudes of life (CLA S 13(2)) which normally is 15%. This
adjustment should reflect a balance of positive vicissitudes such as
promotions, pay rises, further education opportunities against negative ones
such as industrial disputes, sickness, unemployment and accidents. This
would probably be no more than 15% since [reasoning e.g he is already a
senior manager and would not experience that many more promotions].
3. On top of this amount, add past expenses eg medical expenses [insert
expense in question], which are determined on the balance of probabilities
whether an event has occurred or is required. For future expense, however,
courts must make an estimate on the chances a particular event [insert from

case and reasoning] would happen and adjusts its award of damages to
reflect the degree of probability. (Malec) Additionally, [plaintiff] has a duty to
take reasonable steps to mitigate his/her loss. (Sharman)
4. Then one must question if there was a gratuitous carer. In this case his
[carer] would constitute one since she was reasonably needed solely
because of [plaintiff]s injuries [quote: otherwise should would have received the promotion she
was aiming] (CLA S 15). However, there are no damages for this if either it was
less than six hours or less than six months. (CLA S 15(3)(b)). Judge Gibbs in
Griffiths outlined three rules regarding gratuitous carers.
i. Damages are awarded to the victim of the accident
ii.
The value of the services must be the market cost not the lost of
earnings of the service provider. (therefore, the fact that the [partner]
earns [$] is not relevant)
iii.
The principle applies where there is no obligation to remunerate the
carer
5. This final amount would be adjusted for the discount by 5% for present
value. (CLA s 14(2)(b))
Category B non-economic loss (general)
1. The CLA s 16(3) provides for a whole-person impairment threshold where the
maximum of $535000 for the most extreme case (CLA S 16(2)) and no
damages unless you have at least 15% of the most extreme cases (CLA S
16(3)). Courts would determine the severity to [plaintiffs] non-economic
loss as a percentage of the most extreme case. Applying this percentage to
the table on s 16, the courts can determine the proportion of the maximum
amount payable to [plaintiff]. Damages here would not be for the most
extreme cases as [plaintiff] is not at a level of say a quadriplegic.
(Southgate)
2. Pain and suffering would be defined as a subjective sensation of distress
and would give rise to damages as [reasoning eg. He is recently at risk of
depression]
3. Comparing his lifestyle before he [reasoning] compared to now, [plaintiff]
clearly had suffered a loss of amenities.
4. Finally, [plaintiff] would also receive damages for loss of expectation of life.
This is however limited at $2000. (Sharman)
If necessary, mention remoteness and any defences that change the damages.
e.g. contributory negligence

in so far as [plaintiff] was found to be contributory negligent for [insert from case],
the overall damages would be apportioned between him/her and whoever is liable.
If necessary, mention remoteness and any defences that change the damages.
e.g. contributory negligence
in so far as [plaintiff] was found to be contributory negligent for [insert from case],
the overall damages would be apportioned between him/her and whoever is liable.