REMEDIES - HYPOTHETICAL PROBLEM.docx - Student Number 43256856 HYPOTHETICAL PROBLEM Question 1 The issue to be determined is whether Tom meets the

REMEDIES - HYPOTHETICAL PROBLEM.docx - Student Number...

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Student Number: 43256856 HYPOTHETICAL PROBLEM Question 1 The issue to be determined is whether Tom meets the elements required to receive compensatory damages in tort, whether he is likely to have a successful claim and what damages he can receive. In order for Tom to receive compensatory damages, it must be established that Tom has a tortious cause of action; Antonia’s tort has caused Tom’s loss; Tom’s loss is not too remote; and Tom has not breached his duty to mitigate unnecessary loss. As Antonia has accepted liability for Tom’s injuries, she has accepted the legal responsibility that her actions caused Tom’s injuries. This indicates that the first 3 elements should be assumed to have been proven and accepted, however as the burden of proof of the last element is on the defendant, Antonia must prove on the balance of probabilities that Tom breached his duty to mitigate the losses flowing from Antonia’s wrong. Mitigation In claims such as Tom’s, the aim of personal injury laws is to uphold the principle of restitutio in integrum , which aims to compensate the defendant, placing them in the position they would be in as if the tort had never occurred. 1 In this case, Antonia would argue contributory negligence as Tom was wearing headphones whilst passing under her window, arguably causing him to not hear the fight between Antonia and Lisa. If contributory negligence is found to be present, the damages recoverable are to be reduced by an extent that the court sees just and equitable, having regard to the share in responsibility. 2 The New South Wales Court of Appeal suggests that people should take responsibility for their own lives and safety, 3 this is upheld through legislation that most Australian jurisdictions have upheld, 1 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, at 39. 2 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1). 3 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 at [78] –[100]. 1
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Student Number: 43256856 where contributory negligence may reduce the amount of damages completely if it is just and equitable to do so. 4 Based on the aforementioned application within the courts, it is advised that due to the court’s strict application of the objective-subjective nature of the test for contributory negligence, 5 Tom may have his damages reduced due to his share of culpability for his injuries, done so on the judge’s discretion. The Australian Capital Territory Supreme Court has previously found in multiple cases that contributory negligence was present where the plaintiff was wearing earphones at the time of the injury, 6 one case reducing the award for damages by 75%. 7 Tom is likely to argue that due to the recurring nature of such big fights between Antonia and Lisa, her culpability in the injury should be at a much higher percentage than his (Tom will argue against any culpability) when assessing damages due to the amount of times that Antonia may have thrown a suitcase from the window.
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