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The courts deciding actions for invasion of privacy are likely to draw on the principles of damages as developed by the courts in these torts. In those circumstances the principles of Podrebersek had no application where, because of the provisions of the Act, the driver was not at fault so that comparisons of culpability and contributions to the damage suffered were inappropriate. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. Only one such action may be brought so that all potential beneficiaries should be nominated as plaintiffs. It is standard practice to itemise amounts awarded to a plaintiff under various heads of damage and to give reasons for arriving at each of the stated figures. Following his diagnosis with mesothelioma, he lost the capacity to provide this care, and his wife was admitted to a nursing home. In Weideck , the injured plaintiff could no longer live in the caravan he occupied prior to his injury.
Civil Trials Bench Book
If the defendant succeeds, damages are reduced to take account of the failure to mitigate. He said the provision left open the question of whether the onus of proving that reasonable steps were not taken would impose at least an evidentiary burden on the defendant.
The obligations imposed by both statutes, in addition to taking reasonable steps in relation to medical treatment, require a plaintiff to undergo appropriate rehabilitation, pursue alternative employment opportunities and give early notice of claims.
The test of whether refusal is reasonable is objective but factors particular to the plaintiff must be considered. Factors considered include anxiety states, language difficulties, prior experience of medical treatment and cultural background. It is questionable whether religious beliefs would be regarded as a reasonable basis for refusing treatment. It is not necessary to prove that the treatment would have been successful.
In this respect, it is necessary to consider the following. Whether there has in fact been a failure to mitigate. Damages may be denied or reduced where the symptoms of which a plaintiff complains are the result of a pre-existing condition.
Further, in discharging the evidentiary onus, the defendant must produce more than a scintilla of evidence concerning a prior condition or the likely consequences thereof.
The evidentiary onus is then on the defendant and, if the defendant is unable to establish an alternative cause, he or she may be held fully liable. A commonly occurring scenario arises in cases of injuries suffered as a result of more than one accident or exposure to disease-causing dusts.
If this is done and it is not possible to apportion responsibility between one or more potential causes of damage, the plaintiff will recover in full. The onus is on the defendant to establish and quantify the extent of damage caused by another tortfeasor: Where it is possible to divide the harm, the court must do its best to apportion the loss between tortious and non-tortious causes: Damages of this nature were therefore not a windfall but compensation for the destruction of the asset.
At common law a defence of contributory negligence, if successful, defeated a claim, regardless of the extent of any negligence on the part of the defendant.
In other words, an objective test is applied without regard to the subjective situation of the plaintiff. Some of these provisions do not apply to minors. As to the Motor Accident Injuries Act , see [ ] under the subheading Contributory negligence. The Civil Liability Act goes further in relation to drugs or alcohol. Section 50 applies where the capacity of a plaintiff to exercise reasonable care and skill is impaired by intoxication. No damages are to be awarded where damage is unlikely to have occurred if the injured party had not been intoxicated.
This provision applies to under-age drinkers. Once a finding is made that the plaintiff was guilty of contributory negligence, it is necessary to determine the proportions in which each of the parties is to be held liable for the damage suffered by the plaintiff.
It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver. The duty of care is owed from the point of withdrawal. In deciding the issues in that case, the High Court considered in detail prior authority on issues of duty of care in circumstances of illegal conduct: The defendant raised three issues in defence: Tobias AJA rejected all of these defences.
The first was allowing the defendant to drive the vehicle; the second was to stand in front of it while directing the defendant. The NSW Court of Appeal has considered the issue of how the apportionment of liability is to be undertaken having regard to the provisions of the Civil Liability Act.
Both cases involved collisions between vehicles and pedestrians and both involved findings of breach of duty and contributory negligence. He took the view that the apportionment is now to be made having regard to the causative contributions of the lack of care of each party and not by reference to the extent to which each act of neglect contributed to the damage suffered by the plaintiff. It was in the apportionment of responsibility that the issue of the extent to which each party was responsible for the accident and the injuries sustained became relevant.
In the latter case, McColl JA noted that the parties did not suggest that there was any significance in the differences between s 9 1 of the Law Reform Miscellaneous Provisions Act and s 1 of the Motor Accidents Compensation Act Appellate courts consistently note that the facts of earlier cases are rarely of assistance when determining an appropriate apportionment.
They also maintain a degree of reluctance to interfere in the first instance determination: Section 5T Civil Liability Act requires the court to take account of the contributory negligence of the deceased in claims under the Compensation to Relatives Ac t Section 30 Civil Liability Act extends this requirement to the contributory negligence of a victim killed, injured or endangered by an act or omission of the defendant when assessing claims for nervous shock.
Section 7F of the Act provides for the reduction of damages by reason of contributory negligence on the part of a deceased or injured person. In those circumstances the principles of Podrebersek had no application where, because of the provisions of the Act, the driver was not at fault so that comparisons of culpability and contributions to the damage suffered were inappropriate. This head of damage is also referred to as general damages or non-pecuniary loss.
It covers the elements of pain, suffering, disability and loss of amenity of life, past and future. As already noted, in respect of the future, an element of hypothesis is involved. There are few remaining areas in personal injury claims where damages remain at large. The Motor Accidents Compensation Act and the Civil Liability Act impose thresholds to the recovery of non-economic loss and an upper limit on the amounts that may be awarded.
Common law damages for non-economic loss are no longer recoverable under the Workers Compensation Act. The maximum sums recoverable for non-economic loss are adjusted annually by reference to fluctuations in the average weekly earnings of full-time adults as measured by the Australian Statistician: The adjustment takes effect on 1 October in each year. The maximum sum to be awarded is that which is prescribed at the date of the order awarding damages.
The Motor Accidents Compensation Act applies to injuries suffered in accidents occurring after midnight on 26 September Sections — deal with non-economic loss. If the parties disagree on this question, a medical assessor, whose determination is binding on the parties and the courts, is appointed by the Motor Accidents Authority. The following are the steps required in the assessment of non-economic loss in accordance with this section:.
The proportion should be expressed as a percentage. Confirm the maximum amount that may be awarded under this section for non-economic loss in a most extreme case. Use the Table to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table.
The issue of what constitutes a most extreme case has been considered in a number of decisions arising out of provisions of the Motor Accidents Act that are identical to those now in the Civil Liability Act: Another issue that has been dealt with on several occasions is the manner in which damages as a proportion of the maximum are to be assessed.
It is true that a small variation in the assessment may have significant consequences for the amount of damages to be awarded.
However, the fact that a small change in the assessment can have a large consequence in monetary terms does not mean that the nature of the assessment changes or can be assumed to be a more precise exercise than it is. The relationship between the assessment and the consequence is fixed by Parliament. To assess the proportion of a most extreme case by reference to the consequence in monetary terms would be to adopt a legally erroneous course.
Consistent with the Dell approach, a trial judge, assessing the proportion of a most extreme case, is not required to arrive at an unrealistic level of precision provided the percentage falls within a reasonable range of assessment: The age of a plaintiff may have an effect on the assessment of non-economic loss under the Civil Liability Act.
In Reece v Reece 19 MVR , the Court of Appeal remarked upon the need, when assessing, on a proportionate basis, the severity of injury, to consider the age of a plaintiff and the likely length of the period over which the pain and suffering of progressive disability would be suffered. The court held that the consequence of particular injuries were likely to be more severe in the case of a younger person than that of an elderly plaintiff who had a much shorter period of life expectancy. The principles adopted in Reece v Reece and Varga , above, did not apply to claims under the Motor Accidents Compensation Act or the Motor Accident Injuries Act where damages are not assessed by reference to a proportion of a most extreme case: Holbrook v Beresford 38 MVR However, where the plaintiff suffered injury in multiple accidents, the assessment is to be made by reference to the injuries suffered in each individual accident: Muller v Sanders 21 MVR He said the Competition and Consumer Act did not purport to, nor did it, have the effect of excluding recovery of non-economic loss under the Civil Liability Act notwithstanding that causes of action were available to the plaintiff under both Acts.
Damages in such a case, therefore, are intended to take account of, in addition to the deprivation of liberty, the shock of the arrest and injury to feelings, dignity and reputation. This head of damage includes income loss, superannuation losses and out-of-pocket expenses such as voluntary and commercially provided care expenses. The authorities make it clear that damages for lost income, past and present, are awarded for impairment to income-earning capacity when the impairment is productive of income loss: There are therefore three questions to be answered in assessing income.
Damages for past and future loss of income are allowed because diminution of earning capacity is or may be productive of financial loss: Graham v Baker , above. Although the exercise involves assessment of lost earning capacity and not loss of earnings, evidence of wage rates, known for the past and likely in the future, provides a basis for assessment.
Both the lost capacity and the economic consequences of that loss must be identified before it will be possible to assess the sum that will restore the plaintiff to his or her position but for injury. What was earned in the past may be a useful guide to what might be earned in the future but it does not always provide certain guidance. Assessment of future income loss necessarily involves the consideration of future possibilities or hypothetical events.
The exercise is imprecise and carried out within broad parameters. Evaluation of the extent to which a plaintiff may in future lose time from work and of the proper compensation to be allowed depends on the evidence. An error of principle would be involved in concluding, in the absence of evidence, as a matter of certainty that a plaintiff will suffer future income loss. The onus is on the plaintiff to provide evidence in support of the claimed diminution in earning capacity.
Past income is relevant to this consideration but is not always determinative. The onus is on the defendant who contends that the plaintiff has a residual earning capacity to provide evidence of the extent of that capacity and of the availability of employment.
Where it is clear that income-earning capacity has been reduced but its extent is difficult to assess, the absence of precise evidence will not necessarily result in non-recovery of damages.
The task is to consider a range of what may be possibilities only that a particular outcome might be achieved to arrive at an award that is fair and reasonable.
There are cases where tax returns do not reflect the full amount of that capacity. For example, the case of a husband and wife partnership, where income is divided equally although one partner performs the work necessary to generate the income while the other undertakes the administrative tasks associated with the operation of the business.
The plurality of the High Court noted:. Malec v Hutton and Medlin v SGIO , above, were High Court decisions, the result of which was that, where a plaintiff demonstrates some loss of earning capacity extending beyond the date of trial, although difficult to assess, the courts are bound to award something unless, on the material before the court, it can be seen confidently that the damage suffered by the plaintiff will not in fact be productive of income loss. In general it was desirable for precise evidence to be called of pre-injury income and likely post-injury income.
Absence of that evidence will not necessarily result in an award of no or nominal damages for impaired earning capacity. In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.
Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.
This was because the trial judge was required to estimate loss when precise calculation was not possible and the figure arrived at took into account a range of factors, including the changing value of money.
The court held that she was entitled to recover income loss during the lost years subject to the deduction of an amount to account for the expenses that she would have incurred in self maintenance. No deduction was required for the expense of maintaining dependants. They pointed out that it was necessary to call evidence that suggested a plaintiff was less able than any other career-oriented person, whether male or female, to combine successfully a demanding career and family responsibilities.
Childcare and domestic-care responsibilities, they said, did not always involve expenditure. This was a matter of choice for the family and the expense involved was of a private or domestic nature. Specific evidence is required if a plaintiff proposes to work beyond retirement age: A certificate of assessment of whole person impairment issued under Motor Accidents Compensation Act s 61 is not conclusive in respect of economic loss: While the content of the certificate may have some relevance, extreme caution was required in relying on the content of the certificate in assessing damages for economic loss: It is an acknowledged principle that life is not always certain and that unpredictable events can affect future income.
These events or vicissitudes are dealt with by of the application of a discount to the sum assessed as compensation for future income losses. For instance, where the plaintiff is of advanced age with a relatively short period over which the assessment of future income loss is to be made, the percentage applied for vicissitudes may be reduced. Care should be exercised to avoid double counting. After all, the average person can hardly be regarded as a paragon of virtue when it comes to heavy drinking.
The Workers Compensation Act places stringent limits on the recovery of common law damages from an employer, except where the claim is the result of a motor accident. Damages are payable only to pension age as defined by the Social Security Act No damages for pure mental harm, or nervous shock, may be claimed where the injury was not a work injury: This provision disallows any claim for nervous shock by, for instance, a relative of an injured worker.
The calculation based on those assumptions must be discounted against the possibility that those circumstances might not eventuate. The court is required to state the assumptions on which the award is based and the percentage by which it has been adjusted. Notwithstanding these requirements, common law principles relating to the assessment of income loss, vicissitudes or contingencies continue to apply: Section requires the court to deduct from payments on account of income loss expenses paid to the plaintiff under the Victims Compensation Act repealed, now Victims Rights and Support Act or by the insurer or Nominal Defendant.
The maximum recoverable for the loss of employer contributed superannuation is that required by law to be paid by the employer: This element of income loss arises in situations where a plaintiff has received weekly payments for loss of income under the workers compensation legislation upon which tax has been paid.
The plaintiff when recovering common law damages is required to repay to the workers compensation insurer the gross amount of weekly payments received. In many cases where liability is not in issue, the insurer will pay for or reimburse out-of-pocket expenses that meet these requirements.
Payment of these expenses is commonly raised as a defence to a claim. In general, claims for out-of-pocket expenses centre on needs for treatment, past and future, rehabilitation and aids to assist a plaintiff in overcoming disability arising from injury.
As with income loss, in determining the amount to be awarded, it is often necessary to take account of future requirements for treatment, particularly in the case of orthopaedic injuries that may involve ongoing degeneration and the need for surgery for fusion or replacement of joints. In addition, allowance may be made for the cost of providing special beds, tools or equipment designed to assist an impaired plaintiff in the functions of everyday living.
Thus, the cost of repair or replacement of these items is compensable. Other items held to be compensable include clothing damaged in the course of the accident or treatment. As to the Motor Accident Injuries Act , see [ ]. The plaintiff claimed the considerable cost of a C-leg prosthesis, a specialised computerised device. He explained that he did not, prior to trial, use his conventional prosthesis regularly or for extended periods because it caused him pain.
The evidence established that prior to his accident, the plaintiff suffered from symptoms of osteoarthritis and it was inevitable that he would at some stage require hip replacement that could have been undertaken in a public hospital at no expense to him. The Court of Appeal accepted that the replacement that would have been required as a result of the pre-accident progressive condition was unlikely to involve the urgent intervention necessitated by the injury suffered in the accident.
Accordingly the plaintiff was entitled to recover the cost. The capital costs of modifications to accommodation to meet the needs of a disabled plaintiff are recognised as recoverable out-of-pocket expenses and no allowance is to be made for the increase in the capital value of a property modified for that purpose: In most cases, the cost of the basic accommodation itself is not recoverable. In Weideck , the injured plaintiff could no longer live in the caravan he occupied prior to his injury.
He was allowed the full capital costs of modifications required to deal with his disability. In addition, he was allowed the costs of land and a basic house, heavily discounted to set off the rent he otherwise would have continued to pay and the income that ordinarily would have been diverted to the provision of a capital asset, such as a house. In such circumstances, the additional costs of rearing and maintaining the child are recoverable. There are two varieties of attendant care: The issue that has been most productive of judicial and legislative scrutiny is that arising out of claims for services provided on a gratuitous basis.
The argument was that the loss was in truth suffered by the person who provided the services. The character of the benefit that the plaintiff received by the gratuitous provision of services was such that it ought to be brought to the account of the wrongdoer. The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant.
If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. The plaintiff might, or might not, reimburse the provider. According to the repeated authority of this Court, contractual or other legal liability apart, whether the plaintiff actually reimburses the provider is entirely a matter between the injured plaintiff and the provider.
It is, as has been repeatedly stated, to provide the injured plaintiff with damages as compensation for his or her need, as established by the evidence. The anomaly arose from the departure from the general rule that damages, other than damages for loss not measurable in money, were not recoverable unless the injury involved resulted in actual financial loss.
The controversy arose because the result could be disproportionately large awards when compared to sums payable under traditional heads of damage. He also accepted that in appropriate circumstances a deduction for vicissitudes might be appropriate when assessing a claim for attendant care costs. There are some substantial differences between these provisions. Sackville AJA held that only one six-month qualifying period was involved and it was not a continuing requirement. The result was that compensation was payable for services provided both before and after the threshold requirements were met.
As to services that would have been provided in any event, the High Court in Van Gervan v Fenton , above, recognised that in the ordinary course of a marriage there is an element of give and take in the provision of mutually beneficial services. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services.
To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff.
Nor is it permissible to aggregate the needs created by successive breaches of duty, for example, where those needs are generated by successive accidents, in order to meet the threshold requirements of the legislation: Thus, it was argued, the need for services did not arise solely out of the aggravation of the condition for which the defendant was responsible. Beazley JA, although she said the section was not without difficulty, preferred a construction that was based on the definition of injury.
Where care is not provided on a gratuitous basis, the reasonable cost of reasonably required commercially provided services is recoverable both for the past and future: There was a considerable difference between the cost of hour care in a rented apartment, as claimed by the plaintiff, and the cost of nursing-home care that the defendant argued would meet her reasonable requirements.
A plaintiff is only entitled to be recouped for such reasonable expenses as will reasonably be incurred as a result of the accident. It does not follow that every expenditure which might be advantageous for a plaintiff as an alleviation of his or her situation or which could give him or her happiness or satisfaction must be provided for by the tortfeasor.
The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits.
When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest. Tobias AJA rejected the argument, as without legal basis, that the court must be satisfied that the amount awarded would actually be spent.
In Perisher Blue Pty Ltd v Nair-Smith ALR the Court of Appeal accepted that the plaintiff was entitled to recover damages for the cost of commercially provided services at the established market rate rather than at the lower rate she paid for domestic assistance at the time of trial. The court continued its practice of preferring the commercial rate on the basis that it was not known how much longer the current service provider would continue to work at the lower rate.
It was therefore necessary to consider the particular needs of the dependants involved. The right to damages addressed the needs of the dependants that would, but for injury, have been satisfied by the claimant and the question of whether those needs were reasonable in the circumstances.
If damages are awarded under the section, the assessment of non-economic loss must not include an element to compensate for loss of capacity to provide services to others: Other matters to be taken into account in the assessment of compensation are: Campbell JA, after reference to extensive authority dealing with the many aspects of dependency, said that the nature and extent of the care provided by the claimant to the children were such that a finding of dependence was open.
On the same basis, he rejected the claim that the services were in fact provided to the parents and not to the children. The defendant argued that these services were not services of a domestic nature so that they were not compensable. It caps only the hourly rate by which compensation is to be assessed. Following his diagnosis with mesothelioma, he lost the capacity to provide this care, and his wife was admitted to a nursing home.
The Compensation to Relatives Act provides for actions to be brought on behalf of dependants of deceased victims of compensable injury to recover for loss of financial support and funeral expenses. Only one such action may be brought so that all potential beneficiaries should be nominated as plaintiffs.
Insurance, superannuation, payments from provident funds or statutory benefits are not to be taken into account in assessing an award of compensation: Although unanimously recognising changing social circumstances that cast doubt on prior authority, the High Court was divided on the issue. Gleeson CJ accepted that this contingency should be dealt with when determining an appropriate adjustment for vicissitudes.
He questioned the continued use of the term dependency to describe the right to compensation when, in modern society, it was common for both parties to a relationship to earn income and to have the capacity for financial self-support. He accepted, however, that each party to the relationship might have expectations of direct financial support. He pointed to the anomaly involved in taking into account an established new relationship at the time of trial while making no allowance for repartnering when there was none.
This was a factor to be proved in the usual way and there was no special legal or evidentiary status attaching to the Luntz tables. The Civil Liability Act makes no reference to actions of this nature.
They answered in the negative, the plurality pointing out:. Damages cannot undo personal or psychiatric injury. They can however compensate for the financial losses flowing from the injury and provide a measure of solace for the wrong that has occurred.
Actual damage can consist of physical or psychiatric injury, property damage  or other economic loss. As explained in Chapter 8, in a sense the invasion of privacy is both the wrong and the injury, and the plaintiff is entitled to be compensated because it happened. It is closely analogous to actions like assault and false imprisonment, and other forms of trespass which are actionable per se.
The courts deciding actions for invasion of privacy are likely to draw on the principles of damages as developed by the courts in these torts. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land. The appellant is entitled to have his right of property vindicated by a substantial award of damages If the occupier of property has a right not to be unlawfully invaded, then However, each aim does not need to be separately compensated.
To decide this matter would require a detailed analysis of the new and developing privacy rights and their interaction with defamation. It is not clear to me why, as a matter of principle, damage to reputation of this sort should not be within the sort of thing that privacy rights should protect against.
This accords with the purpose of a privacy action:. For instance, damages in trespass cases involving assault, battery and false imprisonment commonly include a component for injury to feelings or mental distress caused by the tort, as do cases of malicious prosecution and defamation. Nor may they experience an injury that is either physical or amounting to a psychological disorder. It is the emotional damage or loss to their dignity and the hurt and loss of trust caused by the privacy breach that is their greatest concern and one that in our view often necessitates an award of damages to compensate for this loss.
An award limited to compensating material loss will therefore often be insufficient to counteract the wrong. Effective redress requires that the plaintiff can also claim compensation for intangible losses, such as injury to feelings. Courts will be likely to look at damages awarded in comparable cases for other torts. What can be achieved by a monetary award in the circumstances is limited. Any award must be proportionate and avoid the appearance of arbitrariness.
Analysis of the cases Recommendation 12—2 The Act should set out the following non-exhaustive list of factors that a court may consider when determining the amount of damages:. This is a non-exhaustive list. It is intended to guide a court when determining the assessment of damages. It will be for the court to decide whether particular factors are relevant. For instance, s 38 of the Defamation Act NSW sets out mitigating factors for a court to consider when assessing damages, including whether the defendant has made an apology to the plaintiff or has published a correction of the defamatory matter.
While there was no separate award of aggravated damages in Mosley for instance, aggravating conduct was relevant to the assessment of the award of general damages. As Lord Reid said, in the context of defamation, in Cassell v Broome:. He may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said.
Where a plaintiff has pursued alternative dispute resolution ADR or some other complaints mechanism prior to undertaking legal proceedings under the new privacy tort, a court should consider any compensation or other remedy obtained when assessing damages. These may result in the payment of compensation or an award of damages.
Advocates for persons experiencing domestic violence were concerned by the inclusion of this factor in the list of mitigating and aggravating factors. The ALRC also agrees that failure by a plaintiff to engage with a defendant who shows a willingness to settle a dispute prior to legal proceedings should only be used against a plaintiff in an award of damages, where it would be reasonable to do so in the circumstances.
Under state apportionment legislation, a court may reduce an award of damages in certain claims to the extent that the plaintiff was at fault,  but only where the defence of contributory negligence would have been a complete defence at common law.
Contributory negligence is not a defence at common law to intentional torts and the apportionment legislation therefore does not apply to such claims. However, as Eady J pointed out in Mosley,. On the other hand, the extent to which his own conduct has contributed to the nature and scale of the distress might be a relevant factor on causation.
Has he, for example, put himself in a predicament by his own choice which contributed to his distress and loss of dignity? However, it will be a matter for the court whether this should be considered in a particular case.
Recommendation 12—3 The Act should provide that the court may not award a separate sum as aggravated damages.