Compensation to third parties of injured or deceased victim

Area of relational interests.

Compensation to relatives of fatal accident victims

• If death ensues within a relatively short time after the accident, the family of the deceased may claim for the financial loss suffered as a result of the death and the estate of the deceased may proceed with the cause of action which the deceased would have pursued but for the death

o Only family/people specified can sue• Universally: spouse ( + same-sex), parents, step-parents, grandparents, children, step-

children, grandchildren• Blood relationship, not business• If there is no executor/administrator, or that person fails to bring an action within 6 months after

death of deceased, action may be commenced by anyone for whose benefit lies• Legislation: acts caused by a "wrongful act, neglect or default" - in Woolworths v Crotty held to also

include breach of contract where no negligence established against the defendant• Recovery under the statues allowed only for the direct financial contribution to the dependant

which the deceased would have made had he or she lived - majority of cases for loss of chance of financial support from the deceased (i.e. breadwinner - near certainty)

Damages• Lump sum. Although fatal accidents legislation requires only one action be brought, also

specifies that damages to be apportioned among various members of deceased's family in way court sees fit

o Two factors• Extent of the prospective pecuniary advantage that the dependants would have derived

from the deceased• I.e. if breadwinner or husband - take into account substantial household services as well etc• If the wife - and had performed the household/services - damage is value of services• Consideration of any factors which might diminish that loss• Claimant at fault in causing the death and he is the only person who may be sued for the

death, that family member can recover nothing• One claimant partly to blame but others liable: share that would have gone to the claimant to be

reduced in proportion to degree which hejshe was responsible for that death• Cannot take into account the receipt of insurance proceeds/offset the amount of insurance:

the victim took it out for their own and family's benefit. Cannot take off superannuation benefits

o Spouse can now marry someone else

a) The rule in Baker v Bolton: in a civil court the death of a human being may not be complained of as an injury

Holdsworth, "The origin of the rule in Baker v Bolton" (1916) 32 Law Quarterly Review 431

• "In a civil court the death of a human being could not be complained of as an injury" - accepted as correct statement (Lord Ellenborough) First application: covers part of the ground covered by the maxim actio personalis moritur

cum persona - the representative of the deceased victim of a tort, which has caused his (the victim's) death, cannot sue in his representative capacity

Secondly: makes it impossible for a plaintiff to sue a defendant for a wrong committed by the defendant to the plaintiff where that wrong consists in damage causing the death of a person in the continuance of whose life the plaintiff had an interest

• This application: has nothing to do with the maxim action personalis because both plaintiff/defendant are still alive

• This originates in doctrine that if a cause of action in tort disclosed a felony, the right of action in tort was affected

• Is the cause of action in tort wholly lost or only suspended? The merging is the problem• Baker is the product of confusion between the rule based upon the maxim actio personalis and

that based upon the act that the tortious act was a felony - two principles cover different ground, one which concerned the survival causes of action after death and the other the suspension or the loss of a cause of action based upon facts which amounted to a felony

Baker v Bolton (1808) - STAGECOACH

• Plaintiff and deceased wife riding on top of stage coach – coach overturned and she died a month later

• Ptf sued for loss of consortium• Traditionally only men could bring claim for loss of consortium• Jury could only take into consideration the bruises he’d suffered and the loss of society and

distress.Damages stop when your wife dies

Husband sued for damage to his wife, occasioned by the overturning of a coach, as a result of which she had did. Sued for loss of wife's consortiumo "Wholly lost and been deprived of the comfort, fellowship and assistance of his

said wife and had from there hitherto suffered and undergone great grief, vexation and anguish of mind"

o He had been a publican and his wife had been of great assistance to him in his business

No action arises out of the death of a third party (in common law)o Only exception to this rule is statutory compensation - compensation

to relatives act 1897

Swan v Williams (Demolition) (1987) - SANDSTONEPrinciple of law: According to the "much criticised" common law rule in Baker v Bolton (now partially

abrogated by fatal accidents or compensation to relatives legislation in each Australian State and Territory), the death of a human being may not be complained of as a legal injury in civil proceedings. Thus where a wrongdoer, causes the death of a third party (e.g. an employee), no tort action is maintainable against the wrongdoer by a person (e.g. the employer of the deceased) who has suffered financial loss as a result of the death.

Facts• On 24 August 1981, an employee of Williams (Demolition) Pty Ltd was using an oxy acetylene

cutting torch in a premises in the city, occupied by Williams for the purposes of demolition. In consequence of the use of the torch, a sandstone block was dislodged and fell onto a car stationary in York Street. Occupants, Mrs DE Swan and her parents were killed.

• Two actions: one by the deceased's husband, claiming to recover against Williams for negligence and breach of regulations: brought on his behalf and on the behalf of two children. Claim made for financial benefits lost by Swan and the children by reason of the deceased's death, funeral expenses and for damages for nervous shock suffered by Swan in learning about the death. In the second action, Swan Paper Agencies Pty Ltd (the company) of which both Swan and the deceased were shareholders and employees sued Williams for breach of duty, claiming damages for the loss of the deceased's services, and of those of swan while he was affected by the alleged nervous shock

• Trial Judge held that no action lay at the suit of the company for loss of the deceased's services and claim for loss of services incurred by reason of Swan's nervous shock failed on ground that Swan had not sustained that injury. In claim under Compensation to Relatives --> damages apportioned to him and his children, claim for nervous shock nominal

Held

• Woolworths v Crotty applies; therefore the company's claim for damages for loss of the deceased's services occasioned by her husband denied

• Company had not proved that it had suffered damages because of nervous shock caused to Mr Swan of the kind necessary before damages could be recoverable in respect of it

• Under Compensation to relatives claim - $124,000 to Swan and• $10,000 to each of the children• Appeal in first action allowed. Appeal in the second action dismissed

b) Fatal accidents legislation; the compensation to relatives act ("Lord Campbell's Act 1846") for the benefit of the deceased's dependents e.g. the deceased's spouse, child (ss 4(1) 7(1) (4)) –

Compensation to Relatives Act 1897 (NSW) ss 3-5, 6B, 7

• Wrongdoers who caused the death now have to pay damages to their dependants: in industrial revolution increased technology, use of machines, industrial accidents - until this time, if worker was killed on the job, dependants left to mercy/charity of others

• This, with the contributory negligence statute - expanded liability

• 20th century: claims for psychiatric injury for killed/injury/putting in peril of family members of a deceased

• Doesn't have to be tortious - but wrongful at law, caused by "wrongful act, neglect or default"

• Wrongful act/breach of statute/breach of contract. Does not have to be FORESEEABLE. Does it satisfy the test of causation [without going into remoteness]?

• Was the D's negligence a necessary condition of the P suffering the damage (another way of applying the but for test) - at CL the but for test is the threshold test, then pass to remoteness (whether damages was reasonably foreseeable i.e. Wagon Mound Number 1)

• Primary victim killed/dies from injuries. Not if they are injured.

S4 – who can claimS5 – all claims in one action

CONTRAST S30(S) of the CLA.

Deceased would not have an action if they sued the defendant and got a judgement, and then dies as a result of injuries. Because of the judgement, the cause of action merges with the judgement and ends with the judgement - so at the moment of death, no longer a cause of action: a cannot sue the defendant at the time of death. If granted $200,000 which had to be paid - would be paid to A's estate, not A itself.

• When someone dies, the property goes into estate of deceased person and legal ownership of party passes into whoever is the legal representative of that person recognized by law (Executor of the estate or the administrator of the estate)

o Executor brings compensation to relatives claim on behalf of any possible claimant• One action, brought by the executor, and if not done within 6 months - any relative can bring it

themselves but have to on behalf of everybody

Executor brings two actions:Victim's loss from injuries until the death vs. relative's loss from the death (funeral expenses

included in this)

c) Condition precedent (s3(1): a right of the deceased at the moment of death to maintain an action (in tort or contract) against the defendant and recover damages in respect of the defendant's act which caused the deceased's death

The Stella [1900] - DROWNING

Exclusion clause in contract between tortfeasor and deceased – relatives have no claim: The Stella.

- While on a voyage between South Hampton and Jersey- 80 people drowned- One passenger had been issued a free pass that protected them against liability in the event of

the death of the user

- The trial judge – if he lived he could not bring a claim for the benefit of this family because of the exclusion clause

Nunan v Southern Railway Company [1924] – 100 POUNDS

Contract terms limit damages – limitation does not bind relatives

Nunan gets killed which was caused by D’s negligence

• Ticket held by Nunan limited liability to 100 pounds for death or injury of passenger. Did not exclude liability.

• If Nunan had lived, he would have been able to recover damages –

• Ticket only limited damages that would be paid, didn't exclude altogether therefore the limitation did not exclude the deceased person's action - wasn't limited by the limitation in contract between other parties

RIGHT TO BRING – NOT THAT THEY WILL BE SUCCESSFUL

Woolworths v Crotty (1942) – LIGHTBULB

Principle of law: Under the fatal accidents or compensation to relatives legislation in each Australian state and territory, where the death of the person has been caused by the defendant's "act neglect or default", a tort action is maintainable against the defendant for the benefit of family members of the deceased who have suffered financial loss as a result of the death. In this context, the defendant's "act neglect or default" includes a breach of contract.

Facts• Does Lord Campbell's Act apply in cases where the death is brought about by a breach of

contract? Or is the Act limited to cases where it is the result of a tort?• Plaintiff's daughter bought an electric light globe from the defendant on behalf of her

brother. Her brother used the globe. The globe was imperfectly constructed and the result was that the brother was electrocuted and died. The jury found the defendant company impliedly warranted that the globe was fit for the purpose which it was subsequently put by deceased and not reasonably fit for such purpose

• Jury gave a verdict for the plaintiff - on the breach of contract. Full court held that

Compensation to Relatives applied to cases of breach of contract and the appellant contests this decision

Held• Act deals with cases which, after the death of a person, no action was maintainable against

the person who had caused the death by a ‘wrongful act, neglect or default’. Also, it is sometimes right and expedient that the wrongdoer in any such a case should be answerable in damages for the injury so caused by him - giving damages in cases where otherwise the death of the person injured would have prevented any action being brought and damages being obtained

o Deal with other cases, i.e. where no such action is maintainable but where it is right and expedient that a wrongdoer should be answerable in damages

• The effect of the maxim action personalis: personal representatives of the deceased victim of a tort had no remedy in respect of pain and suffering, or death of the deceased, but by CL and statute exceptions had certain rights to recover damages caused to his property by a tort - the maxim does not apply to prevent survival of causes of action on contracts

o Limitation on damages recoverable: not recoverable in respect of personal injuries, but only injury of the personal estate of deceased

• Rule of Baker v Bolton: there was room for remedial action by way of legislation by giving a right of action for the benefit of some persons who had suffered damage from the death of another person caused by an act which was wrongful in relation to that person, but not other persons - but there can be no cause of action in contract for death of a person as a breach of contract

• The reality and the extent of loss suffered by relatives of a deceased man would be the same whether the act, neglect or default which caused his death was a tort or a breach of contract

o Law had already provided a remedy for cases for the breach ofLord Campbell's Act in breach of contract, so cannot be said that an action not maintainable for

damages in those cases• Words "Wrongful act" very general - can be applied to breaches of contract as well as to torts -

breach of contract may fall within heading ofneglect or default, where a party either fails (neglects) to perform a contractual duty or makes default in performing it, by completely failing to perform it or by performing it in insufficient/imperfect manner

• Appeal dismissed

Kupke v Sisters of Mercy [1996] - NURSE

Principle of Law: Under the fatal accidents or compensations to relatives legislation in each Australian State and Territory, it is a condition precedent to a tort action for the benefit of family members of the deceased that, at the time of death, the deceased had a cause of action against the defendant in respect of the act or omission which caused the death.

Facts• 1988: Alex Kupke, a nurse employed by the defendant, suffered personal injury in an

accident in the course of employment. In 1989 Mr Kupke commenced an action against the D in the Supreme Court of QLD to recover damages in respect of his injury. Psychiatric evidence showed that he had developed a depressive neurosis and, on 29 October 1991 while action against the defendant proceeding toward trial, took an overdose of prescribed tablets and died.

• On 14 May, 1992, his wife, acting in her capacity as legal representative of her husband's estate, executed a Form of Discharge which settled her husband's action against the defendant on payment to the estate.

• On 21 May 1992, she and three other defendants commenced proceedings. She pleaded her husband's injury in the 1988 accident, the defendant's negligence and her husband's death as a result of the injury. By way of defence the defendant pleased the execution of the Form of Discharge which settled action in 1989. Mrs Kupke took summons to answer the question whether Form of Discharge in respect of action 101 of 1989 constituted a bar to the present action

Held

• Action can only be brought if the deceased could have successfully maintained an action had he not died/been killed. If the deceased had already been compensated and discharged all claims or convenated away his rights not in a position to maintain an action

• Lord Campbell's Act established a new action - not connected with the estate of the deceased. Merely says that the nominal person to bring the action on behalf of certain relations shall be the executor/administrator so an action brought by the person designated by the statue is brought in an entirely different right from that in which the action is brought by the executors generally as representing the estate of the testator or intestate

• The deceased's action had not been concluded at his death. At the time of the death, there was a title in the deceased to enforce the liability, so that Mrs Kupke could establish that condition precedent to the right of action given to her and her children by Lord Campbell's Act

o Because 101 of 1989 was proceeding at the time of the death of Mr Kupke, there is nothing in ss 12, 13 and 14 of the CL Practice Act (Lord Campbell's Act) which prevents Mrs Kupke with proceeding

Even though the defendant settled his own action, this did not deprive the relatives of their action. This was because the deceased's action did not conclude at his death and so his relatives could maintain an action.

d) Causation: death caused by a wrongful act; no requirement that death of the accident victim be reasonably foreseeable? Not foreseeable in a precise way (not specific)

Haber v Walker [1963] - SUICIDE

Principle of law: It is a question of fact depending on the circumstances of the particular case whether an intervening act or event is sufficient to break the causal connection between the defendant's negligence and the plaintiff's damage.

Facts• Plaintiff brought an action for damages under s16 of the Wrongs Act 1958 (Vic) on her own behalf

and that of her children after the death of her husband. He had been seriously injured in a car accident caused by the negligence of the defendant.

• He had suffered severe brain damage, developed extreme depression and committed suicide 18 months after the accident. The jury found that his death was caused by the accident, but that his suicide was not reasonably foreseeable by the defendant. The jury also found that at the time of his suicide, he knew the nature and the quality of his act but he did not know what he was doing was wrong.

• At trial: judgement for the plaintiff. Defendant appealed to the Full Court.

Held• Plaintiff must establish that the deceased's death was caused by some act, neglect or default

of the defendant. The fact then which the plaintiff must establish is that the deceased's death by suicide was so caused. It does not have to be the natural and probable result of the act or the direct result of the act or any similar phrase.

• To hold that the conscious act even of a sane person necessarily breaks the chain of causation is inconsistent with the decision in Chapman v Hearse - whether there is a novus actus is "Very much a matter of circumstance and degree" and a question of fact

• Only in actions of negligence that there is reasonable foreseeability of damage as laid down by the decision in The Wagon Mound

o "Wrongful act" to which is referred may be a tort to which the requirements of r.f. of damage are inapplicable

• A wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously

occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly defined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection.

• Deceased's act in hanging himself was not for the purposes of causation a "voluntary" act if the deceased, as a result of the defendant's negligence, was acting under the pressure of a mental disorder

o He was unable to earn his living i.e. one-sided facial paralysis, grossly distorted vision. He was greatly distressed by his grotesque appearance, mental and physical impairment and incapacity to earn money to support his family

• Unreasonable to assume that he had a free choice whether to be distressed or not, or that he engaged in brooding which was not occasioned by his injuries. Evidence showed further that he suffered at intervals from fits of deep depression and developed a fixed idea that no improvement in his position was possible, and this state of mental disorder continued until a short time before his suicide: insane

• Irresistible that his insanity was caused by his injuries, and when he killed himself the insanity so caused had deprived him, not only of free choice, but of all real power of choice, whether to live or die

o Act of suicide was not voluntary and left unbroken the chain of causation between defendant's negligence and the death

ONLY NEED TO SHOW CAUSAL LINK WITH WRONGDOER'S ACT AND DEATH. No questions of reasonable foreseeability.

Mere fact that the act is voluntary doesn't mean that it is a novus actus (March v Stramare). Clear link with injuries, depression and suicide.

Lisle v Brice [2002] 2 Qd R 168

e) Damages: loss of reasonable expectation of financial benefit arising from the family relationship, including loss of domestic services, no account to be taken of the receipt by the dependants of insurance proceeds, superannuation benefits or social security entitlements (s3(3)); surviving spouse's prospects of remarriage or forming a new continuing relationship?

Franklin v South Eastern Railway Co (1858) 157 ER 448

Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349• Services you claim for and say you've lost in compensation to relatives claims must be

family claims and not business benefitso Can get family loss of income for loss of family business member but not the loss of the

business services• Plaintiff who lost wife who was his dancing partner: loss of income framed as a loss

of family member not business loss

Nguyen v Nguyen (1990) 169 CLR 245

Principle of Law: Damages in a fatal accident claim may include the value of the domestic services provided by the deceased even though the surviving spouse or other family members bringing the claim do not intended to replace those lost services with paid outside assistance.

Facts• Plaintiffs claimed damages arising from the death of Nu Thi Nguyen. The deceased died as a

result of injuries received when a motor car, driven by the defendant, in which he was a passenger, left the road and collided with a power pole. The plaintiffs were the husband of the deceased and their two children. Negligence was admitted and award of damages proceeded - apportioned to husband and two children.

o Total sum was arrived at as an assessment of the value of the housekeeping services lost to the family as a result of the death of the deceased, to cover a period ending upon younger child attaining the age of 16

• Husband has not engaged anyone to perform the housekeeping services for himself and children and does not intended to. He has done them himself. The wife never worked and husband has not worked apart form a short initial period. The family has depended on unemployment benefits and after the death of the wife, supporting parent's benefit.

• Defendant appealed the damages because they were to be performed by husband at no cost. The damages were reduced.

Held• Gibbs J in Davies v Powell Duffryn Associated Collieries Ltd at p230 - the fact that a

husband does not intend to replace the services "does not mean that they have no value. It merely shows that he is prepared to use his own time and labour instead of expending money in the circumstances"

• Gratuitous services in Griffiths v Kerkemeyer - but this was to do with physical disability: in accordance with the accepted principle to assess part of that loss by reference to the cost of services required to satisfy the need for which disability gave rise. Novelty lay in giving the plaintiff the cost of the services even though he had not paid and would not pay for them, so he and not the defendant reap the benefit.

o Contrast: Lord Campbell's act is a claim for recompense for some tangible advantage lost by reason of the death of the deceased

• Commonly loss in loss of financial contribution made by the deceased to the household - "loss of a breadwinner"

• But deceased could have also made contribution to services rather than money for which damages recoverable whether or not a pecuniary value can be placed upon them

• A husband claiming for the loss of housekeeping services by reason of the death of his wife may have no need of those services in that he may be able to perform them himself. But if he has suffered the loss he is entitled to recover for it, and does not matter whether he intendeds to use damages to replace the services or not

• Damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help: the services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of services actually provided by the deceased wife

o In circumstances such as these it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's lost. Indeed, in cases where the disproportion is severe, the cost of commercially available services may indeed offer no real guide at all

• If the children take up the household duties, only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household

• Appeal allowed

De Sales v Ingrilli (2002) 212 CLR 338

Principle of Law: In the assessment of damages in a fatal accident claim by the surviving spouse or family partner of the deceased accident victim, no separate deduction is to be made for the prospect that the surviving spouse or family partner, to his or her financial advantage, might remarry or form a new continuing relationship. This contingency may be taken into account, with all other relevant contingencies, in the deduction for general contingencies or the vicissitudes of life but not as so as to increase the deduction.

Facts:• The plaintiff was aged 27 at the date of an accident in WA caused by the defendant

(Respondent's) negligence in which the plaintiff's husband was killed. In respect of her husband's death, the plaintiff brought an action for damages in the District Court of WA under the Fatal Accidents Act 1959 (WA) on behalf of herself and two infant children

• Nine years after the accident, when plaintiff was 36 and had not remarried or formed a new continuing relationship and children were 12 and 9, the primary judged assessed the plaintiff's share of damages on the basis that there should be a deduction of 5% on chance of her of "obtaining support from remarriage"

o On appeal and cross-appeal, the Full Court of the Supreme Court of WA by majority held that the deduction for the plaintiff's "prospects of remarriage" should be increased to 20% plus further deduction of 5% for the general contingencies of life

• Plaintiff appealed contending there should have been no deduction from her share of damages on account of her prospects for remarriage and that the Full Court erred in allowing further deduction for the "general contingencies of life"

Held:• Society has changed since Lord Campbell's Act was enacted - with the nature and durability

of relationships, in the labour market, and in the expectations that individual members of society have for themselves and about others

• To assess the pecuniary loss that the death has caused the relatives, it is necessary to take account of what may have happened in the future had the death not occurred and as well to take account of what may happen to the relatives in the future even though the death has occurred -"vicissitudes of life" are "very much a matter of speculation" � best that

can be done is to assess a sum which will, as far as the limits implicit in the task will permit, represent the value of that loss

o How is account to be taken of life's uncertainties? Possibilities that may have to be reflected in any assessment of the present value of the economic loss suffered by all of the relatives as a result of the deceased's death, not just the surviving spouse

• Requires an estimation and judgement rather than calculation, seldom to represent the result as if correct to the nearest dollar

• Why should one possibility (remarriage, or formation of other continuing relationship) be considered separately from all others? To consider it separately assumes that it is a contingency whose likelihood of occurrence can be separately assessed with reasonable accuracy, and the financial consequences of its occurrence will tend in one direction rather than the other (financial advantage)

o Both these assumptions flaws - seldom will court be able to make useful prediction of when humans form close emotional ties

• Even if difficulties of predicting that a surviving spouse will form some new continuing relationship were to be surmounted, the financial consequences of occurrence are less predictable. Who is to say new relationship will ensure and if endures, provide financial advantage to the person who is now the surviving spouse?

o Any new union is exposed to the same kinds of danger and hazard as the earlier uniono It is therefore wrong to treat the prospect of remarriage or the prospect of forming some

new continuing relationship as a separate item for which some identified discount must be made of the present value of future benefits that would have flowed from the deceased to the relatives

• Cannot be assumed that any new union will be or will remain of financial advantage to any of those for whose benefit action is brought

• Nor can the prospect of remarrying or forming a new relationship properly be seen as a matter which, under the heading of "vicissitudes of life" enlarges the discount which otherwise must be made from the present value of the benefits which deceased providing at death

o Discount can only be assessed as a sum which reflects all of the possibilities• If there is evidence that a surviving spouse intends, at the time of trial, to establish a

relationship with an identified person, account may be taken of evidence of probable financial consequences of the relationship

Cannot be said, on the balance of probabilities, whether, having regard to the whole of the period which must be considered, that relationship would be to the financial advantage or disadvantage of those relatives of the deceased for whose benefit the action is brought l as

a general rule, some allowance should be made for the various possibilities that impact upon the assessment of the pecuniary loss suffered in consequence of the wrongful death of a partner and/or parent l The discount should make an allowance for various contingencies, including the prospect of the appellant's entering into a permanent relationship which is to her financial benefit.

f) Contributory negligence in Compensation to Relatives Acts claims

Law Reform (Miscellaneous Provisions) Act 1965 s 13

• No action for damages for the dependants is defeated by the contributory negligence of the deceased person and damages in such an action not reduced by reason of contrib. negligence or breach of statutory duty of the deceased person

Civil Liability Act 2002 (NSW) s 5S

• Court may determine 100% reduction if they claim reasonable to do so

Civil Liability Act 2002 (NSW) s 5T – does not mention stautory

• Reverses s13 of the Law Reform (Miscellaneous Provisions) Act • Damages can be reduced under Compensation to Relatives Act

Criminal conduct can be 100% defence if by 6 months or more.Effective contractual exclusion clause: buy a ticket for ferry, before you get on there is an

exclusion clause.

If contrib cause – 5T overalls Law Reform Act 1965 s 13

Survival of causes of action in tort after death

PERSON DIES DUE TO THEIR INJURIES:

Person is injured and dies from natural causes, can potentially have claim under 1944 act but not under compensation to relatives. But if vice versa, only compensation to relatives, no survival claim (can maybe only recover funeral expenses).

• At common law, the death of either the victim of a tort or the one liable to it led to a cesser of the cause of action: principle circumstance in which it is likely to be availed of is that in which the victim has suffered personal injury, and hence considered at this juncture

o Doesn't have to be foreseeable

Action vested in deceased• In all cases in which a cause of action survives for the benefit of the victim's estate, the

latter may recover the pecuniary losses suffered by the victim in the period between injury and the death (estate may recover the amount of victim's earning capacity lost during that period, cost of medical, nursing expenses, value of voluntary services)

• Claim of exemplary damages dies with the victim• Where the death occurs from a cause independent of the accident which gave rise to the

cause of action, the legislation in all jurisdictions other than Qld, SA/WA allows the estate to maintain action for non-pecuniary harm suffered by victim between time of accident and date of the death

• Allows recovery by the estate of the funeral expenses of deceased

Action subsisting against a deceased• All actions subsisting against a tortfeasor survive his or her death apart from that for

defamation. And whereas a claim for exemplary damages may not be continued if the plaintiff dies, may still be pursued if it is the defendant who dies

• In case of a road accident - tortfeasor dies before the victim. Absence of statutory provisions to the contrary, the dependants of the victim would be precluded from pursing a claim. But the survival of actions legislation provides for this eventuality thus ensuring recovery to the dependants whatever (possibly coincidental) order in which victim/tortfeasor die

a) Abolition of the common law rule action personalis moritur cum persona (a personal action dies with the person)

Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s2(1), (4), (5)

b) Damages recoverable in a "survival action"

Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)

• S2(2) - all that can get in "survival" claim is medical expenses up till death, loss of earnings (funeral expenses included) until death of victim

o Money goes to the estate so eventually to who the plaintiff left his or her money to i.e. could be family member

Action for the loss of consortium

a)Common law rule

State Rail Authority v Sharp [1981] 1 NSWLR 240

b) Abolition of the common law rule

Does not have any effect on compensation to relatives act - they can sue for loss of services such as loss of domestic services etc.

Law Reform (Martial Consortium) Act 1984 (NSW) s3(1)

CLA replaced this - No longer cause of action for loss of consortium.

Roads and Traffic Authority v Jelfs (2002) Aust Tort Reports 81-583

Principle of Law: The statutory abolition in NSW, Tasmania and Western Australia of the ancient common law right of a husband to maintain an action for loss of consortium against a wrongdoer who has injured his wife does not affect the right of the family members of a fatal accident victim to recover damages, under the fatal accidents or compensations to relatives legislation for loss of the deceased's domestic services.

Facts• Mrs Jelfs, the respondent (plaintiff's) wife, died as a result of an accident caused by the

appellant's (defendant's) negligence• The respondent successfully brought two proceedings in respect of wife's death -a claim

under the Comp for Relatives Act for the benefit of himself and the two teenage children of the marriage as dependants of the deceased and a claim for nervous shock (psychiatric injury) in respect of the depressive illness suffered by the respondent as a reaction to his wife's death.

o In respect to the Compensation action, the trial judge awarded the respondent

damages for "past and future care" comprising 20 hours per week of domestic services, including cooking, cleaning, washing and gardening, which would have been provided to the respondent by his wife

• On appeal, appellant argued that award of damages for "past and future care" or domestic services contrary to s3(1) of the Martial Consortium Act 1984

Held• Consortium act addresses a single issue - the husband's common law action for

consortium. That and that alone was abolished. The action for loss of or impairment to consortium was a single cause of action, unavailable in relation to the death of the wife, which compendiously recompensed the husband for loss of a congeries of rights/benefits

• A husband's statutory right to recover damages flowing from the death of his wife cannot be equated with the action for loss of consortium

• Baker v Bolton - husband's action for damages for loss of consortium. Damages do not lie where the tort kills the wife rather than simply maims her

• Consortium Act addresses an entirely different universe of discourse from the Compensation to Relatives act

• Appeal Dismissed

You can still get damages for loss of services under Comp of Relatives Act which is different to loss of consortium

Action for loss of services

Recover direct damages - cost of retraining someone, cost of replacing someone in the position etc.Where a person is injured, the family of the injured victim have no action in relation to that person's

services.

a) Common law right of an employer to recover damages for the loss of services of an injured employee.

Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392

Principle of Law: The ancient common law right of an employer to maintain an action for loss of services against a wrongdoer who has injured his or her employee is not confined to cases of domestic or household employees but is available in all cases where there is the relationship of employer and employee.

Facts• Appellant sued the respondent for damages alleging that the respondent by negligence

had caused injuries to a train driver employed by the appellant in the railway service and through those injuries the appellant had lost the services of the driver over a period of time

o Driver had been paid his salary during his absence from duty and the cost of medical treatment

• District Court found for appellant and granted damages. Respondent appealed to the Full Court of the Supreme Court of NSW on grounds which raised only the question whether there was such a relationship with the appellant and driver at time injuries occurred as would support the action. Full court allowed appeal. Appellant appealed.

Held• The action per quod servitium amisit lies whenever the plaintiff and the person injured by

the wrongdoing stood to one another at the time of the injury in the relation of master and servant

o Employment of the Commissioner as employment creates the relationship of master and servant which supports action

• The word in law has always embraced many persons who are not domestic servants

• In general, moneys which a master became legally obliged to pay to or for his servant by reason of an injury incapacitating the servant are recoverable by the master in an action against the wrongdoer and that the only form which such an action could take would be the common law action per quod servitium amisit, such damages being consequential upon the loss of servitium

• Appeal allowed

G/O Australia v Robson (1997) 42 NSWLR 439

Principle of law: The decision of the High Court of Australia in Commissioner for Railways (NSW) v Scott remains the authoritative statement of the common law of Australia on the right of an employer to recover damages for the loss of services of an injured employee.

Facts:• Nowlin Pty Ltd carried the business of a taxi operator and employed Mrs Margaret Craig as

a driver. While driving one of Nowlin's taxis, Mrs Craig was injured in a motor accident allegedly caused by the negligent driving of Robson (the respondent)

• Nowlin commenced proceedings against the respondent claiming that, as a result of the injuries suffered by its employee, she had been unable to work for Nowlin and Nowlin had been deprived of her services as a driver with consequent loss of income and profits. The respondent was insured "against liability in respect of . injury to a person" under a compulsory third party policy issued by GIO Australia Ltd

• Appellant refused the respondent indemnity under the policy. Supreme Court believed that the third party policy issued by the appellant to the respondent entitled him to indemnity in respect of Nowlin's claim for the loss of Mrs Craig's services. On appeal the appellant contended that the law of NSW should no longer recognize action for loss of services.

Held:• While an action for loss of consortium of a husband or wife was abolished, the

action per quod servitium amisit was not• Appeal dismissed

b) Partial abolition of the common law right

Employees Liability Act 1991 (NSW) ss 3-6 (where the act applies, an employee is not liable for causing loss of a fellow employee's services)

• Looks at indemnity, the relationship with employer and employee• S4 - gets rid of liability of one employee injuring another employee

Motor Accidents Compensation Act 1999 (NSW) s 142

• No damages awarded for loss of services for a motor accident, but can bring claim under the Compensation to Relatives.

If motorist injuries someone's employee, master does not have action. c) Impact of Civil Liability Act 2002 (NSW)

Chaina v Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533: statutory cap on damages for loss of earnings not applicable to claim by employer for loss of injured employee's services.

• Action by the family company for loss of their services: not personal injury, so not subject for caps of liability

o School is potentially even 'more liable'

Jacks liability to julies nerbous shock which resulted from hugos assicent sterms from a 3(1) and 4(1) of the Law Reform (maiscellaneous provision Act 1944 (NSW) *”The Act”. The act covers “nervous shock, arising from seeing or hearing a family member be injured. Juelie is hugo’s wife, tgys satisifying the family relations criteria in s4(5) of the Act. S 3(1) of the Act means tahat Julie shall not be prevented from recovering damanges merely because the injudty she complained of arose from nervous shock. In order to succeed in such a claim, in accordance with s4(1) of the Act, Julie will have to prove that:

1. Jacks act, neglect or default2. Led to hugo, as Julie’s spouse, being injured and

As a result of hugo’s injust, Julie being within sigbt of Hugo at the time he was injured, suffered nervous shock. Julie is likely to succeed in this claim, as Hugo, was the victum of battery (established above) while she was watching the cricket match, and as result went into nervous shock.

Has to be more specific – specifics of the Act

Although not a binding authority in Australia, we look overseas to see if there is persuasive precedent especially from the judgements of our previous ‘Mother Country’

Barclay v Penberthy

- A right endorsed by the HC in Comm for Railways v Scott, contines to form part of common law of Aus.

- Aircrash- 2 killed, 3 injured- Negalant piloting and negligent design by Barclay

Negligence - Personal injury claims for 3 injury

Comp to relative claisms for 2 death by 2 spouses

Loss of services

Surivial claim

Where you have someone who dies you cant being claim for loss of surives under Bake rand Bolton – if they are injured you can bring a claim for loss of survives but that will expire upon their death

Chaina v Presbyterian Church (NSW) Property Trust (No.25) [2015] NSWSC 518

statutory cap on damages for loss of earnings not applicable to claim by employer for loss of injured employee’s services.