Damages 

Damages are the ordinary remedy in tort. The governing principle is compensatory: so far as money can, restore the plaintiff to the position they would have occupied had the tort not been committed.

That is a different measure from contract, and the difference is worth stating precisely. Contract damages look forward to the position the plaintiff would have been in had the promise been performed — the expectation measure. Tort damages look back to the position the plaintiff would have occupied had the wrong not occurred. Where the same facts give rise to claims in both, the measures can produce materially different sums.

Damages as a remedy provides the cross-cutting framework for selecting a measure and testing causation, remoteness, mitigation and proof.

Two further principles frame the assessment:

• Once and for all. Damages are assessed as a lump sum on a single occasion, covering past and future loss. Later deterioration is generally not revisited.
• The plaintiff must prove their loss. Compensation is not at large, and a head of loss that is asserted but not evidenced is not recovered.

Personal injury: the heads

Sharman v Evans (1977) 138 CLR 563¹ is the leading authority for assessing catastrophic personal injury damages across these distinct heads without double-counting between them.

Past and future economic loss. The compensable loss is the impairment of earning capacity, to the extent it is productive of financial loss — not merely lost earnings. Future loss is assessed on a comparison between the plaintiff's likely earning path with and without the injury, discounted for early receipt and reduced for the general vicissitudes of life. The statutes commonly cap the weekly figure that may be used by reference to average weekly earnings.

Medical, care and related expenses. Past expenses actually incurred and reasonably necessary future expenses. Gratuitous care provided by family members is compensable in principle, but most jurisdictions impose statutory thresholds — a minimum number of hours per week over a minimum period — below which nothing is recoverable at all, and some have abolished the head for certain claims.

For care at home after serious injury, Stewart v Metro North Hospital and Health Service [2025] HCA 34² (a single joint judgment of five Justices) held that the plaintiff must prove that the choice to be cared for at home is a reasonable response to repair the consequences of the tort, assessed on all the circumstances compared with those before the tort, and that the assessment is not confined to balancing the health benefits against the cost ([44]). Decisions reading Sharman v Evans as requiring that balance independently of the plaintiff's choice were not correct ([43]). Once the choice is shown to be reasonable, it is for the defendant to establish that a cheaper alternative was unreasonably refused ([28], [51]). The case concerned the cost of home care after catastrophic injury, and the Queensland scheme for general damages was mentioned only as context ([54]-[55]).

Non-economic loss. Pain and suffering, loss of amenities and of expectation of life, and disfigurement. This is the head the statutes constrain most heavily: by a cap on the maximum award, by a threshold of severity below which nothing is awarded, and in some jurisdictions by a scale expressing the injury as a proportion of a most extreme case.

Interest on past losses, subject to statutory restrictions.

Adjustments

• Mitigation. A plaintiff cannot recover for loss they could reasonably have avoided, including by accepting reasonable medical treatment or suitable alternative work. The onus of showing a failure to mitigate is on the defendant.
• Collateral benefits. Whether a benefit received because of the injury reduces damages depends on its source and on statute. Charitable payments and the proceeds of the plaintiff's own insurance are generally disregarded; statutory scheme payments are commonly the subject of express recovery or offset provisions.
• Contributory negligence reduces the total by the apportioned percentage.

Aggravated and exemplary damages

Aggravated damages are compensatory: they respond to injury to feelings caused by the manner of the wrong. Exemplary damages are punitive, awarded to punish the defendant and deter others rather than to compensate. They share the purposes of punishment — moral retribution, deterrence and denunciation — and are required only if other legal consequences, including compensation and interest on it, are insufficient to achieve them. The usual formula is conduct showing conscious wrongdoing in contumelious disregard of the plaintiff's rights, but the High Court treats that formula as describing at least the greater part of the field, not all of it.

In Austral v Northern Territory [2026] HCA 20³, the joint reasons of Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ said that a finding of conscious wrongdoing in contumelious disregard "may be sufficient it is not necessary" for an award, and that contumelious disregard "may arise even if the disregard of the plaintiff's rights is unintentional or occurs by conduct believed to be lawful". A defendant's belief that its conduct was lawful therefore does not settle the question, because "a wrongdoer's state of mind does not cover the field of circumstances which might justify an award of exemplary damages". The claims were in battery against the Northern Territory for the use of CS gas on youth detainees locked in their cells. The joint reasons reinstated exemplary damages but reduced them to $50,000 for each of the four plaintiffs, holding the $800,000 total disproportionate to the wrongdoing. Gageler CJ and Steward J would have dismissed the appeals, finding no error of principle in the Court of Appeal's reasons, though they would have reduced the awards in the same way had the point arisen.

Both are chiefly the domain of the intentional torts. Several jurisdictions have abolished exemplary, punitive and aggravated damages for personal injury claims founded on negligence, and others restrict them — one of several places where the intentional torts retain remedial advantages that negligence has lost.

Death

Two distinct statutory claims follow a death, and they are frequently confused:

• a survival action, by which causes of action vested in the deceased survive for the benefit of the estate; and
• a dependency claim, by which specified relatives recover for the loss of support they received or might reasonably have expected from the deceased.

Property damage

For damaged goods or land, the measure is the diminution in value or the reasonable cost of repair or reinstatement, whichever is appropriate — with consequential losses recoverable subject to remoteness and mitigation.

A warning about numbers

Quantum in personal injury is statutory, jurisdiction-specific and indexed annually. Caps, thresholds, discount rates and gratuitous care minimums all differ across the states and territories, and the figures move. Any specific figure must be taken from the current version of the relevant Act for the relevant jurisdiction, and never carried across from another state or from an older edition of a text.

Applying this in a problem question

1. State the compensatory principle and identify the position the plaintiff would have been in but for the tort.
2. Take each head of loss in turn, with the evidence supporting it.
3. Apply the statutory constraints for the jurisdiction — threshold, cap and scale — before discussing amounts.
4. Adjust for mitigation, collateral benefits and contributory negligence.
5. Consider aggravated or exemplary damages only where the tort and the jurisdiction allow them.

Where the authority sits

Common law supplies the compensatory principle and the heads of loss; the civil liability and related statutes of each jurisdiction supply the caps, thresholds, discount rates and restrictions that determine the actual sum.