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Remedies Law Research Homework Questions

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Remedies Law


You work as a personal injury lawyer.  Your supervising partner asks you to prepare an advice advising Catherine on how much compensation she may be eligible to receive after the death of her husband, Henry.  She has provided the following facts.

Catherine and her family

Catherine was born on 1 March 1977 and is currently 40 years old.  Catherine was an accountant before her son, Francis, was born. She gave up her accounting career to stay at home full time to look after Francis and manage domestic chores. She depended upon her husband’s (Henry) income to maintain her.  She enjoys good health and is expected to live to 85 years old.

Henry was born on 1 February 1972.  Henry was 45 years old when he died this year in June. He was an architect who had been promoted to partner within his employer firm in December 2016. He had devoted his working life to the firm and expected to continue working there as partner until retirement.

Henry earned $4,000 gross/$3,000 net per week (“net” meaning his take-home pay, or more accurately his gross less tax and the costs of earning the gross). Prior to the accident, Henry was in good health and expected to work until he was 65 years old.  He was expected to live until 80 years old.

Catherine and Henry were married for 20 years. Catherine gave birth to their son, Francis, on 1 January 2000. Their marriage has not always been smooth: in 2007 they separated for a year; in 2013 they separated for 6 months.  Each time they separated they later reunited for the sake of Francis.  Since the 2013 separation, they have lived amicably together.

Francis was born on 1 January 2000.  He is a healthy, 17 year old man. He is currently in year 11 at Merewether Selective High School.  He expects to graduate with a high UAI in 2018 and attend a University in Sydney to study psychology in 2019 (4-year degree).  Henry was going to financially support, ie maintain, Francis for the four years that he studied.

The family lives in Newcastle in a three-bedroom house in Merewether, which is owned by Catherine (her father bought it for her when she gave birth to Francis). The family does not own any other real property.

The accident

Henry was badly injured on 1 February 2017 in a water-skiing accident when the family was on holiday in Port Macquarie.  The accident was caused by the negligence of Port Macquarie Adventures Pty Ltd (‘PMA’).  PMA has admitted full liability for the accident. There is no evidence of Henry having been negligent.

The accident rendered Henry comatose and resulted in the amputation of four fingers on his right hand (Henry was right-handed).  He also suffered many broken bones, and extensive head and spine injuries.  He underwent several surgeries on his head, arm and spine. Henry remained in hospital in a coma from the date of the accident until his death.

Unfortunately, on 1 June 2017, he developed a blood clot that killed him. It is accepted that the blood clot was caused by the accident.

Related expenses

Medicare statement on the costs of all treatment: $250,000.

Funeral expenses: $12,000

Other consequences of the accident

Henry was unable to return to work before his death.

Since Henry’s death, Catherine works up to four days a week as an office assistant in an accountancy firm to make ends meet. She earns $800 net per week. She has recently been in contact with her ex-boyfriend from high school and they have started dating.

Both Catherine and Francis were understandably badly impacted by the death of Henry and miss Henry very much. Nonetheless both have been resilient and able to get on with life by supporting each other. They have not needed professional care to deal with grieving, depression etc.

Catherine is the executrix and sole beneficiary of Henry’s will. Henry left Catherine $250,000.

Henry’s estate received $500,000 from Henry’s superannuation fund.

How Henry’s net earnings were spent at the time of death

At the time of Henry’s death, he spent his net weekly earnings as follows:

  • Maintenance of Henry: 40% ($1,200 per week)
  • Maintenance of Catherine: 40% ($1,200 per week)
  • Maintenance of Francis: 20% ($600 per week).

Catherine expected to receive the same level of maintenance per week while she continued to be married to Henry, even after Francis left home. They did not plan to have any further children.

Maintenance means: financial support including payment for food, clothing, general living and personal expenses, medical treatment, etc.

Other information

  • The average weekly earnings of all employees in New South Wales for the most recent quarter is $1,500 gross per week.
  • The relevant Commonwealth Government 10-year benchmark bond rate as published by the Reserve Bank of Australia is 2%.

Advice sought

  1. Can the Estate of Henry claim any damages from PMA?

If yes, identify:

  1. The legislation under which the Estates’ claim will be made; and
  2. The heads of damage claimable and the estimated amounts.

Note that PMA has accepted liability in negligence. You do not need to discuss causation and remoteness.

  1. Can Catherine and Francis claim damages from PMA for the financial benefits they expected to receive had Henry not been tortiously killed?

If yes, identify:

  1. The legislation under which the claim will be made; and
  2. the heads of damage claimable and the estimated amounts in respect of Catherine and Francis. Assume the calculation commences from Henry’s date of death. (Round up part years to the nearest whole number.)

Further instructions

Read the Subject Outline for further instructions on word limit, format, etc.

You will need to research legislation not covered in this subject, but which was considered in 70317 Torts.

Calculate the damages based upon the facts provided above only. You do not need to research statistics or averages.

Demonstrate how you calculate each head of damage by explaining the steps you take. We are not looking for a single, correct final figure. Rather, we are assessing if you understand what heads of damage are claimable, how certain figures are calculated and whether your case for damages is rationally supported by the facts.

For ease of calculation, you can assume that a month is 4 weeks.

Feel free to use tables, subheadings, etc, to set out your calculations, if using them will assist your calculations and explanations and more cleanly present your case.

You do not need to address who is the proper plaintiff.

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