3.1 Damages, generally[1]

Judicial notes
  1. Damages for pecuniary and non-pecuniary loss are governed by a quite complex series of statutory provisions.The provisions of greatest importance, and their application, are broadly described in the preface to the charge in 3.2.
  2. If liability has been in issue at trial, the jury will already have been directed in accordance with Part 1, 1.1 – 1.7 and(probably) all or much of Part 4, 4.1-4.8.But if the trial has been conducted as an assessment, it will be necessary to direct the jury about those matters – in the case of Part 4, to the extent that they have arisen at trial – before continuing as follows:

The Jury Question(s)
  1. The starting point is the question which you have to answer: At what sum do you assess the plaintiff’s damages?[2]
Issues
  1. As I see it, the critical aspects of the case on which you need to focus in answering that question are as follows: [set out the critical aspects of the case relevant to assessing damages].
Causation
  1. It is necessary for the plaintiff to establish on the balance of probabilities that the accident caused or materially contributed to the injuries [he/she] claims to have sustained.[3]
  2. I remind you that the plaintiff at all times carries the burden of proof.You will need to examine the evidence to be satisfied as a matter of common sense that it is more probable than not that [his/her] injuries and resulting incapacity were caused by the accident.
  3. Here you are not concerned with any philosophical or scientific theory of causation.The law says that the existence of the causal connection between the breach of duty, which[you have found established/which the defendant had admitted] and the injury is to be determined in accordance with the application of your common sense to the evidence.
  4. So, you will decide this issue on all the evidence – not just medical evidence in isolation, or the circumstantial evidence in isolation.You need to look at all the evidence and determine, as a matter of common sense, whether you are satisfied that the defendant’s [established/admitted] negligence was a cause.
  5. The plaintiff is not required to prove that the accident is the only cause of [his/her] injuries.[He/she] must prove that the defendant’s negligence was a cause, but not necessarily the sole cause, of the injuries, loss and damage suffered by [him/her].All the plaintiff need prove is that the accident was a cause or, to put it another way, materially contributed to the injuries alleged to result from the accident.
  6. It is not necessary for the plaintiff to prove that the medical specialists regard the link between the accident and the injury as being more probable than not.It is for you, on all the evidence, to determine whether on the balance of probabilities the accident was a cause of the injury or loss [he/she] alleges.
  7. So, to summarise, you only compensate the plaintiff for those injuries and disability caused by the accident.If you are satisfied on the balance of probabilities that the accident was a cause of an injury and any resultant disability (be it physical or psychological) then the plaintiff is entitled to be compensated.If you are not satisfied on the balance of probabilities that the accident materially contributed to an injury and disability, then [he/she] cannot be compensated for that injury or any related disability.Similarly, if you are not satisfied that the effects of the accident continued past a certain point in time then [he/she] cannot be compensated past that point.On the other hand, if you are satisfied the effects of the accident have continued to, say, now, and on the balance of probabilities, will extend into the future, (whether 5 years, 10 years, or indefinitely) then you award compensation accordingly.
Purpose of damages
  1. Now, let me return to the question(s) for your consideration.The guiding principle is that the plaintiff is to be awarded fair and reasonable compensation for [his/her] injuries, loss and damage.
  2. The object of damages is to compensate, not to punish; it is to fairly compensate the plaintiff.
Today’s money
  1. You make such an award in today's money.You do not worry about what the value of money might be next year, next week, whatever.You do not pay any regard to past inflation or the risk of inflation in the future.
Once and for all
  1. Damages are awarded once and for all.What I mean by that is that the plaintiff cannot come back.This is [his/her] one case.Equally, the defendant cannot come back.Of course, none of us know what is going to happen in the future. But if you were to take a too generous view of the plaintiff’s claim, the defendant cannot come back in years to come and say, 'well, look, [he/she] is better now and I should get some of this money back because the jury in 2013 was too generous.'
  2. Similarly, if you were too stingy or if the damages were too modest, if I can be less pejorative, the plaintiff cannot come back in the future and say, 'I'm much worse now.I want more.I need more.You obviously took the view that I would be back at work doing something and I'm not and I'm even worse.'Damages are once and for all.
Costs
  1. Do not take legal costs into account; they have got nothing to do with your assessment.Legal costs are a matter for me after your verdict and I will sort it out then.
Capacity to pay
  1. Give no consideration to whether the defendant has the capacity to pay such damages as you award.Do not consider it.Your task is, simply, to fix amount(s) that represent fair and reasonable compensation.
Principles of damages for pain and suffering and loss of enjoyment of life:
  1. Pain and suffering damages are for pain and suffering and loss of enjoyment of life both past, present and future.They are not capable of mathematical estimation and they are left to your good judgment as members of the community.You use your judgment to fix an appropriate sum that is fair and reasonable compensation for the plaintiff’s pain and suffering and the loss of enjoyment of life in the past, present and future, as you find it to be.As I have already said, you are to assess damages being neither unduly modest and miserly nor, on the other hand, being unduly extravagant or lavish.Fair and reasonable is the touchstone.
  2. There is obviously some overlap between pain and suffering and loss of enjoyment of life, because pain and suffering is likely to bring about loss of enjoyment of life. The overlap is not complete, but because there is an overlap, you might look at these elements in a composite way rather than splitting them up. But make sure that you consider all aspects of the plaintiff's pain and suffering, as you find it to be, and all aspects of [his/her] loss of enjoyment of life.
  3. Ultimately, the question you have to ask yourself is what is a fair and reasonable amount to award the plaintiff for all the pain and suffering and all the loss of enjoyment of life that you find [he/she] has sustained to date as a consequence of the injuries that you find were caused by the negligence of the defendant, and for all the pain and suffering and loss of enjoyment of life as you find[he/she] will sustain in the future, again as a consequence of the negligence of the defendant.
  4. There is no scale.It is entirely up to you as to what is a fair and reasonable sum.
The defendant takes the plaintiff as it finds him/her
  1. If relevant, insert the charge in 3.3.
Aggravation/acceleration of pre-existing injury or disease
  1. If relevant, insert the charge in 3.4.
Evidence and submissions
  1. The following pieces of evidence of the plaintiff, lay witnesses and medical specialists appear to me to be relevant to the plaintiff’s claim for pain and suffering and loss of enjoyment of life. Again I emphasise that this is my brief summary of evidence that may help you.But it is your view of the important parts of the evidence as you heard it that counts – not my synopsis of the evidence: [set out relevantevidence and submissions].
  2. The main arguments, as I understand it, that counsel advanced with respect to the plaintiff’s pain and suffering and loss of enjoyment of life were as follows:[set out the plaintiff's arguments].
  3. You will remember what I have said about counsel’s arguments already.They are not evidence.If an argument commends itself to you, make use of it.But otherwise, ignore it.
Pecuniary loss damages
  1. If relevant, insert so much of the charge in 3.2 as is pertinent.
Aggravated damages
  1. If relevant, insert the charge in 3.7.
Exemplary Damages
  1. If relevant, insert the charge in 3.8.

Last updated: 14 April 2014

1

[1] Note: This charge is a guide only, and may require modification to fit the facts of an

individual case

[2]If the proceeding is brought under the Accident Compensation Act or the Transport Accident Act, and if the plaintiff is claiming both pain and suffering damages and pecuniary loss damages, the damages must be assessed under the separate heads. There will be two questions, one relating to pain and suffering damages and one to pecuniary loss damages. But if, in a proceeding brought under either of those Acts, the plaintiff is only claiming pain and suffering damages, there will be a single question, relating to damages of that kind. In any other case, there will be a single question: At what sum do you assess the plaintiff’s damages?

[3]This charge does not refer to 'material contribution'. In a case in which causation is a hot issue it may be necessary to refer to this concept: Amaca Pty Ltd v Booth [2011] HCA 53.