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This right arises under statute law wrongs act s23b1

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This right arises under statute law: Wrongs Act , s23B(1) Where D is liable in respect of damage suffered by P, D may recover contribution from any other person liable in respect of the same damage Wrongs Act 1958 (Vic), s24(2) The amount of contribution D can recover from the other person shall be such as the judge or jury considers just and equitable, given the extent of that person’s responsibility for P’s damage. Borad discretion. 45
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Remedies – Confined to personal injury (including physical damage or psychiatric injury) (a) Damages Wrongs Act 1958 (Vic), ss 28F-28H, 28LB, 28LE-28LH Damages for personal injury Purpose of remedies: to put the plaintiff, as nearly as possible, in the position she would have been in had the negligent act not been performed Once and for all rule : once damages have been assessed at trial, that is the end of the matter. A consequence of the once and for all rule is that most times the court must predict what future losses the P will suffer. There is a margin of error and this cannot be rectified if the P has received a windfall or has suffered further loss. The damages are a single lump sum including future losses. No yearly weekly payments. Two Broad Heads of Damage Pecuniary: financial losses caused by the defendant’s negligence Non-pecuniary: non-financial losses caused by the defendant’s negligence Pecuniary Losses - Financial losses suffered by the P as a result of D’s negligence. Usually the below elements are the major areas of loss Loss of earning capacity – the courts need to estimate what income the P would receive from that date of the injury until end of working life. Can be difficult with younger children. Medical expenses – only reasonable medical care is compensated for, not best possible treatment Non – Pecuniary Losses In most cases 1 and 2 will be claimed. Pain and suffering – injured as a result of D’s negligence and pain was suffered it is possible to claim. Only physical not emotional distress. Loss of amenities – Emotional distress, frustration etc Loss of expectation of life – shortened life expectancy due to D’s negligence ( i.e D causes P to contract cancer etc), this is a relatively small amount, court find it difficult to judge the value of reduced lifespan. Legislative Limits on Awards of Damages Recent restrictions on damages for personal injury 46
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A cap on damages for non-pecuniary loss (introduced in 2002): ss 28G-H Cap is limited to: $371,380 on 1 july 2003 and is indexed to CPI. A cap on compensation for loss of earnings (introduced in 2002): s 28F Cap is limited to: 3 x average weekly wage (if one earns more one can only receive this figure) A requirement (introduced in 2003) that the plaintiff suffer “significant injury” in order to receive damages for non-pecuniary loss: ss 28LE-LH WA s28LF – Defines ‘significant injury’: An injury is significant only if the degree of impairment is more than 5% or if the injury consists of the loss of a fetus or the loss of a breast. A psychiatric injuries degree requirement is >10%.
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