Full compensation no longer sacrosanct : reflections on the past and future economic loss ‘cap’ for high income earners

Madden, Bill & Cockburn, Tina L. (2012) Full compensation no longer sacrosanct : reflections on the past and future economic loss ‘cap’ for high income earners. Torts Law Journal, 20(2), pp. 90-109.

Abstract

The civil liability provisions relating to the assessment of damages for past and future economic loss have abrogated the common law principle of full compensation by imposing restrictions on the damages award, most commonly by a “three times average weekly earnings” cap. This consideration of the impact of those provisions is informed by a case study of the Supreme Court of Victoria Court of Appeal decision, Tuohey v Freemasons Hospital (Tuohey) , which addressed the construction and arithmetic operation of the Victorian cap for high income earners. While conclusions as to operation of the cap outside of Victoria can be drawn from Tuohey, a number of issues await judicial determination. These issues, which include the impact of the damages caps on the calculation of damages for economic loss in the circumstances of fluctuating income; vicissitudes; contributory negligence; claims per quod servitum amisit; and claims by dependants, are identified and potential resolutions discussed.

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ID Code: 55963
Item Type: Journal Article
Refereed: Yes
Keywords: compensation, damages award, loss of earning capacity
ISSN: 1038-5967
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Tort Law (180126)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2012 Torts Law Journal
Deposited On: 21 Dec 2012 00:51
Last Modified: 29 Nov 2013 03:24

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