Barry, Chris --- "Editorial: Assessing damages" [2019] PrecedentAULA 15; (2019) 151 Precedent 2

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AESSESSING DAMAGES

By Chris Barry QC

This edition of Precedent contains a number of useful articles relating to recurrent and recent issues that arise in matters involving the assessment of damages in tortious claims.

Daniel Aghion has analysed the importance of establishing the causal connection between the tortious conduct and the suffering of loss as a two-stage process when a claim is made for damages for the loss of an opportunity said to be related to the negligent conduct of the defendant.

Louis Baigent and Sarah Vallance have written an interesting article identifying a number of issues that arise when a cause of action is brought alleging medical negligence that results in the birth of an unwanted child, or the birth of a child with disabilities or both the so-called, ‘wrongful birth’ scenarios. The authors question the current situation where damages are confined to an award up until the child reaches 18 years of age, given that many parents continue to support their children beyond that age while they obtain further education or qualifications.

Jillian Barrett’s article deals with an area of law which has undergone significant revision both at common law and by statute since the days when the common law held that a husband could recover damages for the loss of his wife’s ‘consortium’ but a wife could not recover damages for the loss of her husband’s ‘consortium’, because in the latter case such losses were not capable of being quantified in monetary terms.

Associate Professor Kylie Burns, in her article, has analysed a number of studies which demonstrate the discriminatory way in which damages are awarded to female plaintiffs compared with the damages awarded to male plaintiffs for identical causes of action. She examines the underlying assumptions sometimes made as to what the ‘role’ of women in society is or should be for the purposes of making such calculations.

Sharon Drew has produced an article containing several useful illustrations of the distinction between costs and damages in cases where the claim for damages is a claim for costs.

Tim Hammond’s timely article examines the fast-developing area of litigation involving the recovery of damages by survivors of institutional child sexual abuse.

Michael Lee’s article on ‘Damages in dependency’ and Dominic Toomey SC’s article on ‘Compensation relatives damages in NSW: Where are we now’ cover two aspects of this area of damages in death claims. Mr Lee queries the reliance of practitioners upon the well-known tables in Professor Luntz’s very valuable but now somewhat dated textbook on the assessment of damages. He also examines the effect of the changing demographic in the workforce in relation to the quantification of damages in claims by widows. Mr Toomey’s article examines the effect of s15 of the Civil Liability Act 2002 (NSW) (CLA) in cases involving claims under Lord Campbell’s Act.

Whether his thesis as to the proper construction of the New South Wales Act is correct is a matter which will have to await appellate examination.

Tanya Segelov examines the judicial journey of the case of Latz v Amaca Pty Ltd from the District Court to the High Court of Australia which resulted in what might be regarded as a very intellectually creative way of ensuring justice in this particular case.

The final article in this edition involves an examination by Joseph Wheeler and Karina Gafford of a number of Australian and overseas cases which attempt to reconcile the content of various international conventions in relation to aviation law with the undoubted existence of sexual assaults to both passengers and crew on international aircraft. They raise the difficulties that exist in the interpretation in many jurisdictions of what is a ‘bodily injury’. As they correctly point out, the dichotomy between ‘physical injury’ and ‘mental injury’ is a dubious distinction.

These ten articles provide a very useful reference source for practitioners in the area of personal injuries. This edition is worth keeping handy on the bookshelf in the office or in chambers for that purpose.

Chris Barry QC is a common law and appellate silk and Head of Chambers at 5th floor, Selborne Chambers, Sydney. EMAIL [e-mail].