Australian Law on Torts and Assessment

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This provision is based on the rationale that general damages do not represent financial loss to the injured person. A number of changes have also been made to the law in respect to assessment of damages for past and future economic loss.

4. The maximum amount of damages for economic loss due to loss of earnings or the deprivation or impairment of earning capacity is fixed at a rate of three times the average weekly earnings in New South Wales for the most recent quarter occurring before the date of the award.

5. Future economic loss predictions, for the purpose of making an award, must be based on assumptions that accord with the claimant's most likely future circumstances but for the injury. If the court makes an award for future economic loss, it must adjust the amount determined by reference to the percentage possibility that, but for the injury, certain events may have occurred that would have resulted in economic loss. In delivering its judgment, the court must state the assumptions on which the award was based and the relevant percentage by which the damages were adjusted.

6. If an award for damages includes a lump-sum component for future economic loss, that amount must be discounted by five percent or some other percentage rate prescribed by the regulations (Clark 2007, p. 201).

Likewise, the types and ranges of damages that are not allowed to be awarded for gratuitously provided attendant care services, such as nursing or domestic help, have also been defined and restricted as follows:

1. Such damages cannot be awarded unless the court is satisfied that there is (or was) a reasonable need for the services, which has arisen solely as a result of the injury sustained. The court must be of the mind that the services would not be (or would not have been) provided to the claimant but for the injury.

2. No damages may be awarded for gratuitous attendant care services if the services are provided, or are to be provided, for less than six hours per week and for less than a total period of six months.

3. There are certain restrictions on the amount of damages that can be awarded for gratuitous attendant care services. Such limitations hinge upon whether services are provided for more or less than forty hours per week.

4. The court is not permitted to order the payment of interest on gratuitous attendant care services.

5. Exemplary, punitive, and aggravated damages may no longer be awarded in personal injury actions in New South Wales (Clark 2007, p. 201).

Australian tort law is also influenced to some degree by the common law as well as various precedential case law such as Venning v. Chin (1974, 10 SASR 299). In this regard, Bailey reports that this case represents "a classic example of a road accident case in which it was difficult for the plaintiff to prove negligence on the defendant's part" (1976, p. 402). The court's holding in Venning v. Chin represented an attempted effort to use the common law to revise traditional laws regarding vehicular accidents by invoking the tort of trespass to the person which includes stricter liability limits (Bailey 1976). According to Bailey:

When the case reached the Full Court of the Supreme Court of South Australia, this attempted reformulation was emphatically rejected, the members of the Full Court adopting a position of strict orthodoxy. At the same time, the case was given an elaborate conceptual analysis. But in the High Court, Venning v. Chin lapsed into mundaneness and became simply another case on negligence and the evidence required to prove it. The controversial points of law were not raised and . . . At the end of the day, the person who is injured but cannot prove fault gets no help from the common law. (1976, p. 402)

The joint judgment promulgated by the court analyzed the respective constituent components of the tort of negligence and trespass to the person thusly: "The essential ingredients in an action of negligence for personal injuries include the special or particular damage . . . And want of due care. Trespass to the person includes neither" (quoted in Bailey at p. 405). Interestingly, Bailey also reports that the Full Court of the Supreme Court of South Australia in Venning v. Chin held that an action for trespass and an action in negligence could both arise from the facts of the same case. Likewise, quoting Lord Deming, Cottrell notes that, "Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty.

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So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character" (p. 417).

It is not a tort in Australia, though, to prevent an individual from leaving one's premises if the conditions under which that person entered the premises have not been satisfied in full (Tan, 1981).

Defamation Law in Australia

The right of free speech is not absolute, of course, with the well-known example of yelling "Fire!" In a crowded theatre being strictly prohibited because of the likelihood of panic and injury that would follow. Notwithstanding such limitations, though, the right of free speech and freedom of expression are highly prized values in democratic societies such as Australia, the United States and the United Kingdom. According to Amponsah, though, "Australia is an example of a country that does not have a clear constitutional statement protecting free speech," but the author adds, "Australia is evolving in the area of political defamation and has an adequate body of law on this topic" (2004, p. 4). In his essay, "Dancing in the streets," Justice McHugh emphasizes that, "Few doubt the importance of protecting freedom of expression. Freedom of expression is recognised as a fundamental human right in Article 19 of the International Covenant on Civil and Political Rights, and in numerous other international agreements, domestic constitutions, and judicial decisions" (pp. 2-3). The justice adds that, "There is a constant tension between freedom of speech and the protection of reputation that is inherent within defamation law and the need to strike an appropriate balance between these two conflicting public interests" (p. 3).

In his essay, "Perfecting Polly Peck," Kenyon emphasizes that, "Parties in civil defamation disputes very often disagree about what the publication in question means. While the differences may appear minor -- for example, does the publication convey that the plaintiff is guilty of some discreditable action or merely suspected of such guilt -- the way in which these differences are handled in law and litigation practice has great importance. Dealing well with the issue of meaning is central to litigation practices that are fair to both parties, respectful of limited court resources and responsive to the public interest in efficient and effective defamation litigation" (p. 651).

In the case, Berkoff v Burchill, Lord Justice Neill stated, "I am not aware of any entirely satisfactory definition of the word 'defamatory'" (quoted in Cottrell at p. 1), but according to Black's Law Dictionary (1999) defamation is "an intentional false communication, either published or publicly spoken, that injures another's reputation or good name. The holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil (includes both libel and slander)" (p. 417). Likewise, Cottrell notes that, "Although defamation laws differ across jurisdictions and can be very complex, the essence of the tort is fairly simple. A person may have an action for defamation where something has been said or published about them which is 'defamatory'. The plaintiff will not succeed in every circumstance -- for example, if what was said was true or was an expression of opinion (rather than fact) then the plaintiff will fail -- but in order to make a case in the first place it is essential that they have been defamed" (p. 2)..

This formal definition is also consistent with that provided by Kenyon (2007) who notes that, "Defamation law, in outline, appears simple. Plaintiffs need only prove three things: material was published; the material identified them; and it conveyed a defamatory meaning. Damages have long been the usual remedy in civil defamation, and are presumed once the plaintiff's case has been established" (p. 653). Although injunctive relief that would prohibit the publication or utterance of defamatory material is also available under Australian law, it is much more difficult to obtain (Kenyon 2007). These issues are significant, Kenyon (2007) adds, because of the importance of their defences in practice.

According to Cottrell, the precedential statement of law concerning what is defamatory is generally attributed to Parke in the 1840 decision in Parmiter v Coupland in which the court held that: "A publication will be defamatory if it 'is calculated to injure….....

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