Question 1 (damages for personal injury)
The decision Griffiths v Kerkemeyer (1977) 139 CLR 161 enabled the recovery of damages by the plaintiff for care provided gratuitously,
even where (Kars v Kars (1996) 187 CLR 354) the gratuitous provider is the defendant. In Van Gervan v Fenton (1992) 175 CLR 327 at 335-8
Mason CJ, Toohey and McHugh JJ discussed the “sound policy reasons” underpinning the principle. On the other hand, in Grincelis v House
(2000) 201 CLR 321, Kirby J at 322 said that Griffiths v Kerkemeyer set the High Court “upon a path that has repeatedly demonstrated the
‘anomalies’, ‘artificiality’ and even ‘absurdities’ of the ‘novel legal doctrine’ which it adopted”, and Callinan J at 339 referred to
“the incredulous expressions of delight of plaintiffs, and [the] disbelieving dismay of defendants, on being told … that there is no legal
obligation in this country for [the damages] to be paid to the gratuitous career”. Section 15 of the Civil Liability Act 2002 (NSW), in
restricting damages for gratuitous assistance, represents a perhaps unhappy middle ground.
In Hill v Forrester (2009) 79 NSWLR 470; [2009] NSWCA 170 at [12], [16] and [118] Tobias JA and Sackville AJA said that section 15
required “urgent” legislative attention. Assume you are a law reform body recommending changes to section 15. What changes would you make,
and why? Note: you are not expected to draft a new section 15.
Question 2 (damages for lost chances)
Speaking of “lost chances”, Kiefel J in Tabet v Gett (2010) 240 CLR 537 at 581; [2010] HCA 12 at [124] said: “What cases in contract, such
as The Commonwealth v Amann Aviation Pty Ltd and Sellars v Adelaide Petroleum NL, have in common is that the commercial interest lost may
readily be seen to be of value itself. The same cannot be said of a chance of a better medical outcome or a person’s interest in it”.
Referring to Tabet (which was a unanimous decision) and to the 3:2 decision of the House of Lords in Gregg v Scott [2005] 2 AC 176, Birch
comments that “a consideration of the reasoning provided in those two cases demonstrates that the strength of the arguments for the [loss
of chance] doctrine was not adequately discussed, while fallacious or unpersuasive arguments against the doctrine were given decisive
weight: David Birch, “Tabet v Gett: The High Court’s own lost chance of a better outcome” (2011) 19 Tort L Rev 76 at 85.
Is Kiefel J’s distinction between “commercial” and “medical” chances convincing? Why or why not?
Question 3 (damages for breach of contract)
Questioning the relevance of the rule in Hadley v Baxendale, Tettenborn concludes that “in practice liability as often as not depends on
something other than foreseeability, and … this is demonstrated by the contortions the courts have had to introduce to the Hadley
principle in order to deal with the difficulties arising under it. I have suggested that an alternative analysis, based on the parties’
agreement and the object of the broken promise, is a more promising way forward” Andrew Tettenborn, “Hadley v Baxendale Foreseeability: a
Principle Beyond Its Sell-by Date?” (2007) 23 Journal of Contract Law 120 at 147.
Has the rule in Hadley v Baxendale outlived its usefulness? Do the decisions in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009)
236 CLR 272; [2009] HCA 8 and Clark v Macourt (2013) 304 ALR 220; [2013] HCA 56 support Tettenborn’s argument?
Question 4 (non-compensatory damages for breach of contract)
Mason CJ in Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 362, speaking of the restriction of contractual non-economic damages for
mental distress, said that “rule … rests on flimsy policy foundations and conceptually is at odds with the fundamental principle governing
the recovery of damages, the more so now that the approaches in tort and contract are converging”. In the same case, McHugh J said at 395:
“Various explanations of the rationale of this rule have been proffered. None of them is satisfactory”, while Brennan J summed up some of
the policy reasons for restricting damages for breach of contract at 369: “The institution of contract … can operate effectively only if
the parties, at the time when they create their charter, can form some estimate of liability in the event of default in performance. … If
a promisor were exposed to such an indefinite liability in the event of breach, the making of commercial contracts would be inhibited, the
assignment of a contractual right would carry new risks for the party subject to the reciprocal obligation, and trade and commerce would
be seriously impeded. This policy has no relevance to the measure of damages in tort …”.
With reference to these comments, should the range of monetary remedies available for a breach of contract be expanded? Note: This is an
extremely broad and general question and you will need to confine your answer. You might for example focus on policy considerations
underpinning contract or the differences between contract and tort, or on a particular category of contract (eg insurance contracts or
employment contracts), or a particular type of non-compensatory damages (non-economic damages for mental distress, restitutionary damages
reflecting the defendant’s profit, or exemplary damages).
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