Personal+Injury+Compensation


 * __Damages__**
 * à Purpose of Damages**
 * To put the P, as nearly as possible, in the position she would have been in had the negligent act not been performed.
 * Once damages have been assessed at trial, that is the end of the matter – known as the ‘Once and For All’ Rule.

__Pecuniary Loss__
 * à Types of Loss**
 * Financial losses caused by the Ds negligence.
 * E.g. loss of earning capacity, medical expenses.
 * **s.28 F(2) –** there is a cap on the amount available for loss of earnings. The maximum amount someone can claim is three times the average weekly earnings of a P.

__Non-pecuniary__
 * Non-financial losses caused by the Ds negligence.
 * E.g. Pain and suffering, loss of amenities, loss of expectation of life.
 * **s.28 G-H –** There is a cap on the damages a P can receive for non-economic loss, such as pain and suffering and loss of amenities. The maximum they can receive is $371,380.
 * **s.28 LE –** The court cannot award damages for non-economic loss unless the injury in question is a ‘significant injury’.
 * **s.28 LF(1) –** for injuries other than psychiatric injuries, an injury will be significant if the degree of impairment is more than 5%.
 * **s.28 LF(2) –** where the injury is psychiatric, the injury will be significant if the degree of impairment is more than 10%.
 * **s.28 LB –** the injury must also be permanent.
 * **s.28 LG-LH –** Whether the degree of impairment is above 5 or 10% is determined by criteria in the American Medical Association’s Guide to the evaluation of permanent impairment, the assessment is made by a proved medical practitioner or medical panel.

Dependants of a person killed by D’s negligence can recover for any financial loss they suffer because of the death. The deceased must have been entitled to recover damages from D had he/she lived. Ds negligence must have caused the deceased’s death.
 * __Wrongful Death and Survival Actions__**
 * à Wrongful Death**


 * **Part III Wrongs Act** permits the dependants of a person killed by another person’s negligence to recover a financial amount from the D as a result of the death.
 * **s.16 –** makes it clear that these provisions only apply where, if the dead person had lived, the dead person would be entitled to recover damages from the D.
 * The P dependents can only recover the financial contributions that the deceased would have made to them had they lived. They cannot recover for non-pecuniary things such as grief.

Any cause of action the deceased had at the time of her death is vested in her estate.
 * à Survival of Action**
 * If D’s negligence caused the death:** can only recover pecuniary losses suffered by the deceased between the injury and death.
 * If Ds negligence is independent of the death:** can also recover for non-pecuniary harm suffered by the deceased before her death.


 * **Administration and Probate Act –** any cause that the deceased had at the time of death becomes vested in his estate. Thus, the deceased’s estate can bring an action in negligence.
 * When the Ds negligence caused the Ps death, the estate can recover only for losses suffered by the dead person between the time he was injured and the time he died. Within that time period, the only damages that will be awarded are pecuniary per **s.29 Admin and Probate Act**.


 * Back to Torts B**
 * Previous:**
 * Next:**