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CHAPTER 2: REGULATING EXEMPLARY DAMAGES

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eSignature Legality in Australia

Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable. As stated in the opinion, 'reasonable risk' cannot be judged with the benefit of hindsight. For the rule in the U. Further establishment of conditions of intention or malice where applicable may apply in cases of gross negligence.

In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence. For a defendant to be held liable , it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. The basic test is to ask whether the injury would have occurred 'but for', or without, the accused party's breach of the duty owed to the injured party.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.

Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J. We say that one's negligence is 'too remote' in England or not a ' proximate cause ' in the U. Note that a 'proximate cause' in U. The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?

For instance, in Palsgraf v. Long Island Rail Road Co. The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because of fireworks explosion that fell on her as she waited on a train platform. The scales fell because of a far-away commotion but it was not clear that what type of commotion caused the scale to fall,either it was the explosion's effect or the confused movement of the terrified people.

A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it.

The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury.

On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs.

Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently. Such disparity of views on the element of remoteness continues to trouble the judiciary.

Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury.

Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury. Remoteness takes another form, seen in The Wagon Mound No. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn.

The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf.

The Privy Council determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.

In Australia the concept of remoteness, or proximity, was tested with the case of Jaensch v Coffey. The court upheld that, in addition to it being reasonably foreseeable that his wife might suffer such an injury, it required that there be sufficient proximity between the plaintiff and the defendant who caused the collision.

Here there was sufficient causal proximity. Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover.

As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss; it was reasonably foreseeable. It means something more than pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof.

Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no pecuniary loss as a result even though he had suffered emotional injury or damage but he cannot be compensated for these kind of losses.

The plaintiff can be compensated for emotional or non-pecuniary losses on the condition that If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.

The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things. The damage may be physical, purely economic, both physical and economic loss of earnings following a personal injury, [34] or reputational in a defamation case.

In English law, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services. Emotional distress has been recognized as an actionable tort.

Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury. A claimant who has suffered only emotional distress and no pecuniary loss would not recover for negligence.

However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The eggshell skull rule is a legal doctrine upheld in some tort law systems, which holds that a tortfeasor is liable for the full extent of damage caused, even where the extent of the damage is due to the unforeseen frailty of the claimant. The eggshell skull rule was recently maintained in Australia in the case of Kavanagh v Akhtar. Damages place a monetary value on the harm done, following the principle of restitutio in integrum Latin for "restoration to the original condition".

Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the " reasonable person ". Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.

Damages are compensatory in nature. The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

There are also two other general principles relating to damages. Firstly, the award of damages should take place in the form of a single lump sum payment. Therefore, a defendant should not be required to make periodic payments however some statutes give exceptions for this. Secondly, the Court is not concerned with how the plaintiff uses the award of damages. The United States generally recognizes four elements to a negligence action: Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas.

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