Loss of chance and the evaluation of hypothetical's in contractual claims

Analyses how to calculate damages for the loss of an opportunity by reason of a breach of contract, in the light of the House of Lords judgment in Gregg v Scott concerning clinical negligence. Discusses whether different principles apply to contract claims and torts.

Assessment of damages for property damage

In Gagner Pty t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 691, the assessment of damages awarded for the rectification work to the premises of the respondent was in issue. The appellant operated a restaurant above the respondent’s jewellery store in Sydney. When the kitchen of the restaurant flooded, water escaped causing damage to the jewellery store’s fit-out. The escape of the water was held to be due to the negligence of persons for whom the appellant was vicariously liable. The trial judge awarded damages, measured by the amount required to return the premises as close as was possible to the condition prior to the flood damage as well as an allowance for interruption to the business for 10 days. The 10 day allowance reflected the number of days the store would have been closed for if it was to be returned to its previous condition. The evidence was that the flooding has only affected approximately 10% of the floor area of the store. However, instead of having work carried out to bring the premises back to its condition as before the water damage, the respondent closed the business for 29 working days for a complete internal refurbishment – at a cost substantially more than simple rectification. On appeal it was argued that the trial judge had assessed the damages incorrectly as by undertaking a complete refurbishment had the effect that the respondent did not suffer any loss as a consequence of the negligence in relation to the fit-out. It was asserted that the claim for damages was in the circumstances a claim for betterment. It was also argued that the damages should not include a component for GST. Campbell JA gave reasons, with Macfarlan JA and Sackville AJA agreeing.

Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

Assessment of damages for defamation of business and personal reputation

An award of damages for defamation is to provide reparation for harm to a plaintiff’s reputation for the publication of defamatory material, compensate for any personal distress caused and vindicate the plaintiff’s reputation.1 Assessing such damages is recognised as a difficult task and perhaps the Queensland courts face further difficulties as there are few awards of damages for defamation in the state. This was pointed out in the recent decision of the Queensland Court of Appeal, Cerutti & Anor v Crestside Pty Ltd & Anor.2 This decision examined in detail the principles of assessing damages for defamation.

Assessment of functional forms of crop yield loss models of invasive plant species applied in decision support tools and bioeconomic modelling

AbstractObjectives Decision support tools (DSTs) for invasive species management have had limited success in producing convincing results and meeting users' expectations. The problems could be linked to the functional form of model which represents the dynamic relationship between the invasive species and crop yield loss in the DSTs. The objectives of this study were: a) to compile and review the models tested on field experiments and applied to DSTs; and b) to do an empirical evaluation of some popular models and alternatives. Design and methods This study surveyed the literature and documented strengths and weaknesses of the functional forms of yield loss models. Some widely used models (linear, relative yield and hyperbolic models) and two potentially useful models (the double-scaled and density-scaled models) were evaluated for a wide range of weed densities, maximum potential yield loss and maximum yield loss per weed. Results Popular functional forms include hyperbolic, sigmoid, linear, quadratic and inverse models. Many basic models were modified to account for the effect of important factors (weather, tillage and growth stage of crop at weed emergence) influencing weed–crop interaction and to improve prediction accuracy. This limited their applicability for use in DSTs as they became less generalized in nature and often were applicable to a much narrower range of conditions than would be encountered in the use of DSTs. These factors' effects could be better accounted by using other techniques. Among the model empirically assessed, the linear model is a very simple model which appears to work well at sparse weed densities, but it produces unrealistic behaviour at high densities. The relative-yield model exhibits expected behaviour at high densities and high levels of maximum yield loss per weed but probably underestimates yield loss at low to intermediate densities. The hyperbolic model demonstrated reasonable behaviour at lower weed densities, but produced biologically unreasonable behaviour at low rates of loss per weed and high yield loss at the maximum weed density. The density-scaled model is not sensitive to the yield loss at maximum weed density in terms of the number of weeds that will produce a certain proportion of that maximum yield loss. The double-scaled model appeared to produce more robust estimates of the impact of weeds under a wide range of conditions. Conclusions Previously tested functional forms exhibit problems for use in DSTs for crop yield loss modelling. Of the models evaluated, the double-scaled model exhibits desirable qualitative behaviour under most circumstances.

Report on the workshop on damage and loss assessment and the impact of disasters in Belize

Includes bibliography

Assessment of the damage caused by flood rains and landslides in association with hurricane Michelle, october 2001: implications for economic, social and environmental development

Preface This study was prepared for the Government of Jamaica following the significant physical damage and economic losses that the country sustained as a result of flood rains associated with the development of Hurricane Michelle. The Planning Institute of Jamaica (PIOJ) submitted a request for assistance in undertaking a social, environmental and economic impact assessment to the Economic Commission for Latin America and the Caribbean (ECLAC) on 14 November 2001. ECLAC responded with haste and modified its work plan to accommodate the request. A request for training in the use of the ECLAC Methodology to be delivered to personnel in Jamaica was deferred until the first quarter of 2002, as it was impossible to mount such an initiative at such short notice. This appraisal considers the consequences of the three instances of heavy rainfall that brought on the severe flooding and loss of property and livelihoods. The study was prepared by three members of the ECLAC Natural Disaster Damage Assessment Team over a period of one week in order to comply with the request that it be presented to the Prime Minister on 3 December 2001. The team has endeavoured to complete a workload that would take two weeks with a team of 15 members working assiduously with data already prepared in preliminary form by the national emergency stakeholders. There is need for training in disaster assessment as evidenced by the data collected by the Jamaican officials engaged in the exercise. Their efforts in the future will be more focused and productive after they have received training in the use of the ECLAC Methodology. This study undertakes a sectoral analysis leading to an overall assessment of the damage. It appraises the macroeconomic and social effects and proposes some guidelines for action including mitigating actions subsequent to the devastation caused by the weather system. The team is grateful for the efforts of the Office of Disaster Preparedness and Emergency Management (ODPEM), the associated government ministries and agencies, the Statistical Institute of Jamaica (STATIN), the Planning Institute of Jamaica and the Inter American Development Bank (IDB) for assistance rendered to the team. Indeed, it is the recommendation of the team that STATIN is poised to play a pivotal role in any disaster damage assessment and should be taken on board in that regard. The direct and indirect damages have been assessed in accordance with the methodology developed by ECLAC (1). The results presented are based on the mission's estimates. The study incorporates the information made available to the team and evidence collected in interviews and visits to affected locations. It is estimated that the magnitude of the losses exceeds the country's capacity to address reparations and mitigation without serious dislocation of its development trajectory. The government may wish to approach the international community for assistance in this regard. This appraisal is therefore designed to provide the government and the international community with guidelines for setting national and regional priorities in rehabilitation and reconstruction or resettlement programmes. A purely economic conception of the problem would be limited. A more integrated approach would have a human face and consider the alleviation of human suffering in the affected areas while attending to the economic and fiscal fallout of the disaster. Questions of improved physical planning, watershed management, early warning, emergency response and structural preparedness for evacuation and sheltering the vulnerable population are seen as important considerations for the post disaster phase. Special attention and priority should be placed on including sustainability and increased governance criteria in making social and productive investments, and on allocating resources to the reinforcing and retrofitting of vulnerable infrastructure, basic lifelines and services as part of the reconstruction and rehabilitation strategy. The Jamaican society and government face the opportunity of undertaking action with the benefit of revised paradigms, embarking on institutional, legal and structural reforms to reduce economic, social and environmental vulnerability. The history of flood devastation in the very areas of Portland and St. Mary shows a recurrence of flooding. Accounts of flooding from the earliest recorded accounts pertaining to 1837 are available. Recurrences in 1937, 1940, 1943 and 2001 indicate an ever-present probability of recurrence of similar events. The Government may wish to consider the probable consequences of a part of its population living in flood plains and address its position vis-à­¶is land use and the probability of yet another recurrence of flood rains. (1) ECLAC/IDNDR, Manual for estimating the Socio-Economic Effects of Natural Disasters, May,1999.

Guyana: socio-economic assessment of the damages and losses caused by the January-February 2005 flooding

Includes bibliography

Assessment of strategies for linking the damage and loss assessment methodology to the post-disaster needs assessment

This report was prepared at the request of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) with support from the Caribbean Catastrophe Risk Insurance Facility (CCRIF) to assess strategies for linking the ECLAC Damage and Loss Assessment (DaLA) Methology to the Post Disaster Needs Assessment (PDNA). Each metholodolgy was individually outlined and their use in the Caribbean context was explored in detail to set the framework or lens through which their linking would be viewed. Other methologies that are used within the recovery process were identified and outlined. A gap analysis was conducted on moving from the PDNA with a focus on initial rapid reponse to DaLA. DaLA training materials were reviewed to assess where improvements can be made to seamlessly move from one methology to the next. Additionally, both DaLA and PDNA reports were reviewed to identify specific areas of information which could serve as common data links, and note how this linkage could inform the overall disaster assessments in the region. This is in addition to noting any similarities or variance in the application of both methologies. Challenges to linking both methodologies were identified such as countries lacking well defined recovery frameworks and their ability to fund or finance recovery efforts, in addition to recurrent challenges in the Caribbean region such as inadequacy of baseline data, human resource and training, and identifying teams to conduct the data collection. Recommendations made in terms of the strategies to be employed for the successful linking of both the DaLA and PDNA Methodologies included: creating and maintaining a recovery framework and baseline data; creation of a minimum requirements list for the successful implementation of PDNA and DaLA implementation; and increasing political will in addition to identify a champion to push the subject.

Outdoor bronze conservation: assessment of protective treatments by accelerated aging and of treatment removal procedures by laser cleaning

Outdoor bronzes exposed to the environment form naturally a layer called patina, which may be able to protect the metallic substrate. However, since the last century, with the appearance of acid rains, a strong change in the nature and properties of the copper based patinas occurred [1]. Studies and general observations have established that bronze corrosion patinas created by acid rain are not only disfiguring in terms of loss of detail and homogeneity, but are also unstable [2]. The unstable patina is partially leached away by rainwater. This leaching is represented by green streaking on bronze monuments [3]. Because of the instability of the patina, conservation techniques are usually required. On a bronze object exposed to the outdoor environment, there are different actions of the rainfall and other atmospheric agents as a function of the monument shape. In fact, we recognize sheltered and unsheltered areas as regards exposure to rainwater [4]. As a consequence of these different actions, two main patina types are formed on monuments exposed to the outdoor environment. These patinas have different electrochemical, morphological and compositional characteristics [1]. In the case of sheltered areas, the patina contains mainly copper products, stratified above a layer strongly enriched in insoluble Sn oxides, located at the interface with the uncorroded metal. Moreover, different colors of the patina result from the exposure geometry. The surface color may be pale green for unsheltered areas, and green and mat black for sheltered areas [4]. Thus, in real outdoor bronze monuments, the corrosion behavior is strongly influenced by the exposure geometry. This must be taken into account when designing conservation procedures, since the patina is in most cases the support on which corrosion inhibitors are applied. Presently, for protecting outdoor bronzes against atmospheric corrosion, inhibitors and protective treatments are used. BTA and its derivatives, which are the most common inhibitors used for copper and its alloy, were found to be toxic for the environment and human health [5, 6]. Moreover, it has been demonstrated that BTA is efficient when applied on bare copper but not as efficient when applied on bare bronze [7]. Thus it was necessary to find alternative compounds. Silane-based inhibitors (already successfully tested on copper and other metallic substrates [8]), were taken into consideration as a non-toxic, environmentally friendly alternative to BTA derivatives for bronze protection. The purpose of this thesis was based on the assessment of the efficiency of a selected compound, to protect the bronze against corrosion, which is the 3-mercapto-propyl-trimethoxy-silane (PropS-SH). It was selected thanks to the collaboration with the Corrosion Studies Centre “Aldo Daccò” at the Università di Ferrara. Since previous studies [9, 10, 11] demonstrated that the addition of nanoparticles to silane-based inhibitors leads to an increase of the protective efficiency, we also wanted to evaluate the influence of the addition of CeO2, La2O3, TiO2 nanoparticles on the protective efficiency of 3-mercapto-propyl-trimethoxy-silane, applied on pre-patinated bronze surfaces. This study is the first section of the thesis. Since restorers have to work on patinated bronzes and not on bare metal (except for contemporary art), it is important to be able to recreate the patina, under laboratory conditions, either in sheltered or unsheltered conditions to test the coating and to obtain reliable results. Therefore, at the University of Bologna, different devices have been designed to simulate the real outdoor conditions and to create a patina which is representative of real application conditions of inhibitor or protective treatments. In particular, accelerated ageing devices by wet & dry (simulating the action of stagnant rain in sheltered areas [12]) and by dropping (simulating the leaching action of the rain in unsheltered areas [1]) tests were used. In the present work, we used the dropping test as a method to produce pre-patinated bronze surfaces for the application of a candidate inhibitor as well as for evaluating its protective efficiency on aged bronze (unsheltered areas). In this thesis, gilded bronzes were also studied. When they are exposed to the outside environment, a corrosion phenomenon appears which is due to the electrochemical couple gold/copper where copper is the anode. In the presence of an electrolyte, this phenomenon results in the formation of corrosion products than will cause a blistering of the gold (or a break-up and loss of the film in some cases). Moreover, because of the diffusion of the copper salts to the surface, aggregates and a greenish film will be formed on the surface of the sample [13]. By coating gilded samples with PropS-SH and PropS-SH containing nano-particles and carrying out accelerated ageing by the dropping test, a discussion is possible on the effectiveness of this coating, either with nano-particles or not, against the corrosion process. This part is the section 2 of this thesis. Finally, a discussion about laser treatment aiming at the assessment of reversibility/re-applicability of the PropS-SH coating can be found in section 3 of this thesis. Because the protective layer loses its efficiency with time, it is necessary to find a way of removing the silane layer, before applying a new one on the “bare” patina. One request is to minimize the damages that a laser treatment would create on the patina. Therefore, different laser fluences (energy/surface) were applied on the sample surface during the treatment process in order to find the best range of fluence. In particular, we made a characterization of surfaces before and after removal of PropS-SH (applied on a naturally patinated surface, and subsequently aged by natural exposure) with laser methods. The laser removal treatment was done by the CNR Institute of Applied Physics “Nello Carrara” of Sesto Fiorentino in Florence. In all the three sections of the thesis, a range of non-destructive spectroscopic methods (Scanning Electron Microscopy with Energy Dispersive Spectroscopy (SEM-EDS), μ-Raman spectroscopy, X-Ray diffractometry (XRD)) were used for characterizing the corroded surfaces. AAS (Atomic Absorption Spectroscopy) was used to analyze the ageing solutions from the dropping test in sections 1 and 2.