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9.6 – Civil Remedies: Damages and their purpose

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Question

why would someone take legal action? —

what would you hope to gain from doing so?

1. protecting ones rights, 2. ensuring that a contract is performed as

intended, 3. being recompensed for expenses caused by the

actions of a defendant, 4. restoring a prior situation,5. being compensated for harm done.

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Damages

Receipt of a sum of money to provide compensation for the civil wrong

The amount of damages vary due to the individual circumstances of each case.

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Types of Damages

Compensatory Damages

1. SpecificAwarded for items that can be accurately measured in money terms (Medical)

2. General DamagesAwarded for items that cannot be accurately measured (income potential)

Lynette ROWE case study (Page 348)

The exact terms of the settlement were confidential but Rowe's lawyers said it was several million dollars. The lawsuit asked for compensation for the victims' pain and suffering, lost wages and future medical care.http://www.theguardian.com/business/2012/jul/18/australian-woman-settlement-thalidomide-distributor

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Types of Damages

Exemplary Damages

Aka: Punitive damagesAwarded in circumstances where the court wants to make an example to aid in deterrence.

Aggravated Damages

Awarded when the court believes the defendant had reckless disregard for the plaintiff’s welfare

Punish the defendant

Aggravated and Exemplary damages are closely linked.

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Types of Damages

Nominal Damages

Awarded a small amount of money

Normally applied in situations where the plaintiff is pursuing the defendant in situations of social justice/Principal of the matter.

Plaintiff not seeking great amounts of damages

Contemptuous Damages

Awarded a small amount of money

The court disapproves of the plaintiffs actions in taking the matter to court even though the Plaintiff is legally right.

Trivial matters.

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Interest paid on damages

In addition to receiving damages a plaintiff may also be entitled to interest payable

Monetary loss could have arisen by not having access to those funds

i.e., instead of paying bills that money could have been used to earn interest in a bank.

Back dating the commencement of the interest period varies When the plaintiff should have

been paid by the defendant When writ first issued

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Restrictions on Damages

Expiry dates associated with some claims

After a certain period you may not be able to make a claim.

Limitations of Actions Act 1958 (Vic.) (incorporating amendments up to 2007)

Action for damages in respect of 1. personal injuries 2. breach of contract or

tort by an adult ‘must not be brought after the expiration of three years from the date on which the cause of action accrued’.

Work injury claims and transport accident injuries are subject to different time limits.

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Restrictions on Damages

The Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002

Claims for non-economic loss, which is pain and suffering and loss of quality of life, are limited to $472 500 indexed with CPI

The Wrongs and Limitations of Actions Acts (Insurance Reform) Act 2003 also places limitations on non-economic loss unless the person has suffered significant injury; More than 5%

impairment for injuries More than 10%

impairment for psychological injuries

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Your Turn

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