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Assessment of damages – Recent cases

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Inconsistency of laws

See Perisher Blue Pty Ltd v Nair-Smith 9/4/15 [2015] NSWCA 90 where inconsistency between s74 of Trade Practices Act and NSW Civil Liability Act found. “Once it is accepted that s 74(1) regulates the quantification of damages, the question becomes how, precisely, does it do that. On its face, s 74(1) says nothing about how damages are to be assessed and quantified. Recourse must be had to the statement in Wallis that it confers entitlement to ‘full contractual liability’. The phrase ‘full contractual liability’ must be understood as a reference to the full amount of damages recoverable at common law undiminished by any State’s or Territory’s legislation and free from any intrusion by such legislation. The primary judge correctly held that Part 2 of the Civil Liability Act is directly inconsistent with s 74(1) of the Trade Practices Act and invalid to that extent. The damages the respondent can recover for breach of s 74(1) are to be determined in accordance with the principles applicable at common law and are not subject to the limitations contained within Part 2 of the Civil Liability Act” @193-194.

NSW CLA s5 … Chairlift

See Perisher Blue Pty Ltd v Nair-Smith 9/4/15 [2015] NSWCA 90 where, “On boarding a moving chair forming part of the appellant’s triple chairlift, the respondent was struck in the groin area from behind by the armrest of the chair” @1. R brought claim for damages in contract and negligence. Attendant breached duty of car owed to R by failing to observe the condition of the chair as it exited the bullwheel. However, “it was not open to conclude that the breach of duty found by the primary judge was causative of the respondent’s move from her original position. For that reason, it was not open to his Honour to conclude that the appellant’s breach was a necessary condition of the occurrence of the harm for which the respondent sought damages” @164. Materialisation of inherent risk not established.

NSW … Achilles tendon

See Dwight v Supljeglav 20/2/15 [2015] NSWDC 26 where landlord found to have breached duty of care when P fell down unilluminated staircase in June 2010. D should have ensured that bulbs which had not been working for some time were replaced. Hatzistergos DCJ found no contributory negligence on P’s part. P suffered a “moderate-severe ankle sprain with likely calf muscle tear” and an “an Achilles Tendon Rupture at the musculotendinous junction”. In September the “wound had broken down, … the foot and ankle were very swollen and the wound had an opening of about one centimetre with discharge of puss and showing the Necrotic tendon underneath” @93. In February 2014 it was noted P had persistent Achilles tendonopathy. P is 55. “The injury suffered by her was a significant one. It was sustained in circumstances where it was difficult for her to obtain immediate treatment but ultimately resulted in surgery, infection, immobilisation and an extended period of physiotherapy. Her home and work lives were disrupted … [P] still suffering from swelling, cramps and pain in respect of which she obtains relief by physiotherapy, Panadol and Voltaren. Nevertheless she has returned to many of her household tasks including driving although the evidence is that she needs assistance with heavier tasks” @113. P awarded $100,000 for NEL pursuant to s9 of CLA WA, among other heads.

NSW … Ankle

In Moor v Liverpool Catholic Club Ltd 25/6/13 [2013] NSWDC 93 Levy SC DCJ found the D breached its duty of care to the P who fell in 2009 and injured his ankle while descending stairs wearing ice skates whilst on his way to the ice arena. P was 19 at the time and “suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint” @26. P “continues to experience pain in his ankle and cramping on waking each morning. It takes him some time to ease this problem by moving about. He experiences difficulty with stiffness, mobility and agility with his right leg. He finds difficulty lifting, squatting and bending” @38. P has scarring to his right lower leg, walks ‘like an old man’ and experiences ankle pain every day. Currently, he works 40 hours a week as a truck driver. P 28% of a most extreme case and awarded $75,000 for NEL among other heads. Appeal allowed re liability only [2014] NSWCA 394.


See Browne v Owners of Strata Plan No 55497 1/9/14 [2014] NSWDC 239 where P severely twisted her ankle when she fell through a gap by a drain cover in 2009. “MRI revealed multiple pathology which (sic) partial thickness tear of spring ligament complex, bifurcate ligament tear with possibly associated avulsion fracture of cuboid are few of them” @9. P, who is a stoic 48 year old, returned to work relatively quickly after injury and subsequent surgery. Prolonged standing is difficult for P, as is kneeling, and strenuous activities. She has however made a good recovery, “is able to work full time [in sedentary job], perform most household tasks and activities and her complaint of ongoing symptoms is slight” @59. P is predisposed to osteoarthritic injury and may require future surgery. Gibson DCJ assessed P at 20% of a most extreme case and awarded $16,500 for NEL among other heads.


See McDermott v Woods 13/2/15 [2015] NSWDC 27 where Bozic SC DCJ found D, a horse riding instructor, wholly liable for P’s left ankle injury when she fell off a horse during her lesson in 2010 when she was 35. D was aware the horse P was riding did not like the bridle to be too tight around its nose and mouth, but nevertheless tightened it to the last notch. This caused the horse to misbehave and P to fall. P suffered “a comminuted fracture of the calcaneal with the Achilles tendon attached to a fragment” @443. P “underwent surgery in the form of an open reduction and internal fixation with cancellous bone screws into the heel fracture” @445. P’s injury has contributed to her depression and anxiety. P has suffered ongoing pain and her prognosis is guarded. She is likely to need a fusion in 10-15 years. P’s life has been ‘profoundly affected’. “She suffers from daily pain for which she regularly takes pain medication. She also takes anti-depressant medication. Unlike Nemeth this injury will affect the plaintiff for the rest of her life” @523. “The accident has affected her home life, her family relationships, her work and her self-esteem” @525. P has not worked since the accident. P found to be 28% of a most extreme case and awarded $80,000 in general damages among other heads.

NSW … Arm

See Cockburn v The Trust Company Ltd (No 2) 2/6/14 [2014] NSWDC 119 where P injured his dominant right arm at work in 2010. P is 58. P suffers ongoing, constant pain and his prognosis is poor or guarded. He continues to work with pain. His personality has changed, as have his social and personal daily activities. He cannot walk the dog due to weakness in his right arm. P only gets limited satisfaction now from hard work. Cogswell SC DCJ assessed P at 30% of a most extreme case and awarded P $127,000 for NEL, among other heads.


In Blakemore v Moore & Clements 13/5/15 [2015] NSWDC 9 P tripped in her work car park and suffered “a significant injury to her left upper limb, being a comminuted fracture of her right humerus in the fall. She had immediate surgery by way of open reduction and internal fixation of the fracture, and several further surgical interventions to achieve union of the fracture” @133. P also lost some time from work. Although D not found liable, Mahony SC DCJ assessed P’s damages at 28% of a most extreme case or $80,000. P also “suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood and … would require ongoing counselling with a specialist psychiatrist and anti-depressant medication” @129.

NSW … Brain

In Stafford v Carrigy-Ryan and QBE Insurance (Australia) 4/7/13 [2013] ACTSC 99 P, an architect, “suffered a mild traumatic brain injury and post-concussion syndrome that, for a period, caused his headaches” @145. P suffered this injury in a car accident in October 2008 when he was 25. The symptoms had largely abated by mid-2009. Sidis AJ assessed P’s general damages at $40,000, among other heads. Appeal dismissed 27/8/14 in [2014] ACTCA 27.

See Hulanicki bhnf Hulanicki v Walton 7/3/14 [2014] ACTSC 17 a case in which P, when she was 20 in 2006, suffered a severe brain injury in a car accident. P suffered various fractures to her head including “a depressed fracture of the right parietal with mild comminution along the anterior edge of the fracture. There was a small underlying right-sided extra dural haematoma and a small left-sided sub dural haematoma in the parietal region; a transverse fracture of the base of the skull extending from the mastoid, involving the right petrous temporal bone, the clivus, the body of the sphenoid and extending through into the floor of the pituitary fossa. High density fluid within this sphenoid sinus was consistent with blood; free intracranial air, lying above the fractures through the mastoid and petrous temporal bone air cells; fluid is present in the middle ear cavities on both sides, and in the clinical setting is most likely blood from the traumatic fracture; subarachnoid blood was present in the quadrigeminal cistern and in the left sylvian fissure; hemorrhagic contusion of the left anterior temple [sic] lobe and adjacent posterior aspect of the frontal lobe. Hemorrhagic contusion was also present in the posterior and posteromedial aspects of the right temporal lobe; and there is mild mid line shift from right to left. There is also diffuse swelling within the brain with effacement of the cortical sulci” @82. P has memory deficits, is easily distracted, has unwanted facial hair growth, significant sensory impairments to her right eye and left ear, balance issues, difficulty working independently, time management problems, difficulty multi-tasking, and doesn’t socialise as well with others, among other things. P often feels frustration and anger as a result of her condition. She used to enjoy her job in the office of a real estate agent, but since the accident has not been able to cope with this job and various other jobs she has tried. “Over the period of nearly 8 years since the accident she has only been able to earn just over $12,000, and has found it difficult to obtain and maintain employment” @127. The link between traumatic brain injury and the increased risk of early dementia discussed. P will probably experience dementia early in her sixties. P will have to live with her deficits for a long time. Burns J awarded P $375,000 in general damages among other heads. See decision of 24/7/14 [2014] ACTSC 174 where judgment amended pursuant to slip rule and $1,307,172.00 allowed for fund management.

See Scott v Scott 19/12/14 [2014] NSWSC 1814 where Button J awarded P the statutory maximum of $477,000 for NEL. P was 10 in 2004 when he suffered serious brain injury in a car accident. He has severe physical, cognitive and behavioural diificulties. “He walks with a ‘spastic gait’, and is incapable of running, or indeed walking unaided. He has been assessed as requiring the use of two ‘Canadian crutches’ (elbow crutches), but prefers to use one. He often falls as a result of his physical condition. He also suffers from serious difficulties with the use of his arms. In the past he experienced incontinence; he continues to require assistance with toileting and personal hygiene. … He suffers from memory loss, headaches, and speech difficulties, and his ability to concentrate and reason has been seriously impaired. He is unable to work, even in a ‘sheltered’ work environment, despite his enthusiasm to do so. He requires assistance undertaking simple tasks such as dressing himself … [P] is prone to frustration and anxiety. On occasion he will simply absent himself from situations that displease him by wandering away from home. He is also prone to outbursts of anger … [He] has pushed, punched and scratched his siblings in the past, and regularly throws his leg supports when he loses his temper. … He also often makes inappropriate comments, and verbally abuses both family members and members of the public. … [P] is highly disinhibited in his behaviour … [but] has considerable insight into his disabilities, and can become frustrated and upset when he requires assistance as a result of them” @19-21. Other heads of damages also awarded. P’s LOEC assessed on the basis he would have earned 2/3rds of AWE till retirement if he had not been injured. Button J awarded 70 hours of case management per year for 25 years, and 30 hours of case management per year for 40 years (postponed for 25 years) at a rate of $165 per hour” @110. Award for sexual services refused. Extra holiday costs considered and assessed.

NSW … Breasts

See Appleton v Norris 9/9/14 [2014] NSWCA 311 where the A had unsuccessful breast reconstructive surgery in 2009 when she was 26 and was assessed at 30% of a most extreme case and awarded $123,000 for NEL, among other heads. “On 21 September 2009 the respondent performed bilateral mastopexies and simultaneous augmentation of her breasts by the insertion of implants. A few days later, the appellant noticed that her right breast felt more swollen than the left. Shortly afterwards there was a discharge from the right breast. An ultrasound showed fluid collection around both breasts. The appellant returned to the respondent on four occasions and, on 19 November 2009, he performed a surgical revision … and adjusted the right implant. The inflammation continued. The incision in the right breast had broken open, exposing the underlying prosthesis” @10. A had subsequent procedures and was “left with significant scarring and breast asymmetry as a result of the repeated surgeries and delayed healing. … [A]lso extensive pitting of the skin on the lower part of the right breast” @11. A consequentially suffered an adjustment disorder for a year. It is likely A will have further reconstructive surgery which will be successful. Appeal dismissed.