Student Number: 43256856HYPOTHETICAL PROBLEMQuestion 1The issue to be determined is whether Tom meets the elements required to receivecompensatory damages in tort, whether he is likely to have a successful claim and whatdamages he can receive. In order for Tom to receive compensatory damages, it must beestablished 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 responsibilitythat her actions caused Tom’s injuries. This indicates that the first 3 elements should beassumed to have been proven and accepted, however as the burden of proof of the lastelement is on the defendant, Antonia must prove on the balance of probabilities that Tombreached his duty to mitigate the losses flowing from Antonia’s wrong.MitigationIn claims such as Tom’s, the aim of personal injury laws is to uphold the principle ofrestitutio in integrum, which aims to compensate the defendant, placing them in the positionthey would be in as if the tort had never occurred.1In this case, Antonia would arguecontributory negligence as Tom was wearing headphones whilst passing under her window,arguably causing him to not hear the fight between Antonia and Lisa. If contributorynegligence is found to be present, the damages recoverable are to be reduced by an extent thatthe court sees just and equitable, having regard to the share in responsibility.2The New SouthWales Court of Appeal suggests that people should take responsibility for their own lives andsafety,3this is upheld through legislation that most Australian jurisdictions have upheld,1Livingstone v Rawyards Coal Co(1880) 5 App Cas 25, at 39.2Law Reform (Miscellaneous Provisions) Act1965 (NSW) s 9(1).3Boral Bricks Pty Ltd v Cosmidis (No 2) NSWCA 139 at  –.1
Student Number: 43256856where contributory negligence may reduce the amount of damages completely if it is just andequitable to do so.4Based on the aforementioned application within the courts, it is advised that due to the court’sstrict application of the objective-subjective nature of the test for contributory negligence,5Tom may have his damages reduced due to his share of culpability for his injuries, done so onthe judge’s discretion. The Australian Capital Territory Supreme Court has previously foundin multiple cases that contributory negligence was present where the plaintiff was wearingearphones at the time of the injury,6one case reducing the award for damages by 75%.7Tomis 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 argueagainst any culpability) when assessing damages due to the amount of times that Antonia mayhave thrown a suitcase from the window.