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Damages – Recent cases

ACT … Wrist

See Papp v Finley & Insurance Australia Limited 23/4/15 [2015] ACTSC 74 where P, who is now 53, injured her wrist and shoulder in a car accident in July 2011. “With respect to the right wrist, it was established [P] … suffered a tear of the lunotriquetral ligament” @5. P suffered a “severe anxiety response which is noticeable when she is a driver or passenger in a motor vehicle” @9. P is slower at performing her duties as system operator. “[B]efore the accident, the plaintiff was very active and was able to cope with all household activities and those at work. Since the accident, the plaintiff has endeavoured to maintain her full-time employment which she has been able to do because her employer has given her different duties. In the household … the plaintiff now requires assistance, due to her ongoing pain in her right wrist and left shoulder, in undertaking some household tasks” @111. P has had no time off work since early 2012. P’s right hand and shoulder can be easily aggravated. If P decides not to have a shoulder operation she will be restricted to lighter work. “Such aggravation could jeopardise her employment and impact adversely upon her ability to perform domestic duties” @126. Cowdroy AJ assessed P as entitled to $90,000.00 by way of general damages. The effects of those injuries are continuing, disabling and painful, which will almost certainly affect her in the fulfilment of both her work and domestic duties. Those injuries can lead to periods of incapacity, which affect her in her employment and her home duties” @132. Other heads also awarded.

Compensatory principle

See Millington at GST

Contingencies – Partner’s potential success (impact of)

See White v Benjamin 30/3/15 [2015] NSWCA 75 where Basten JA stated that “the likely future earnings of one party to a relationship should not be discounted on the basis that the other appears to have a successful career on the absence of some basis in the evidence for such an inference. Such a consideration would also need to have regard to the countervailing possibility that the successful spouse might be disabled at some time before the usual retirement age. Although the Court must be slow to interfere with a discretionary assessment which depends in part on an understanding of the plaintiff’s motivations and intentions, it is open to the Court to intervene where there has been a misapplication of principle or a finding made without an appropriate evidential basis” @58-59.


See Millington v Waste Wise Environmental Pty Ltd 29/4/15 [2015] VSC 167 where A caused an accident with a garbage truck by failing to stop at a red traffic signal. A’s car “was insured by Insurance Manufacturers of Australia Pty Ltd … Pursuant to that insurance policy, IMA had agreed to indemnify Millington in respect of his liability to Waste Wise arising from the collision. Assessment of the damage caused to the garbage truck and the engagement of a contractor to repair that damage was organised by Waste Wise, with the assessment and estimates for the costs of the repairs all in Waste Wise’s name … Waste Wise filed a complaint in the Melbourne Magistrates’ Court, claiming an amount of $49,628.18, which included a GST component of $4,203.26” @10-11. The Magistrate concluded that “Input tax credits could be claimed by Waste Wise for GST payable in respect of the repairs to the garbage truckThe measure of Waste Wise’s loss and damage was $49,628.18, being the GST inclusive amount. It is apparent from discussions undertaken at the hearing before the Magistrate that if Millington was not to be ordered to pay the GST inclusive amount, from the time of the repairs being paid and the time at which Waste Wise were able to claim the tax inputs, Waste Wise has lost the use of that money paid as the GST component of the repairs” @12. Magistrate erred in failing to apply the compensatory principle correctly. Various cases considering gst and compensatory principle discussed. “The amount of the loss suffered by Waste Wise is, and has been, clearly quantified. In these circumstances, an order for a fixed sum of money can readily be made, without the need for any secondary amount to be paid back, or indemnity provided, to any party in order to comply with the compensatory principle … [E]ven if it were correct that the respondent had suffered loss in respect of the time it had taken to claim an input tax credit, the proper application of the compensatory principle would have resulted in an amount of interest be added to the award of damages to compensate for the time value of the damages amount” @36-37. See also precis at Once For All Rule.

Managing fund – General principles

See Hulanicki v Walton 24/4/15 [2015] ACTCA 14 where fund management on fund management allowed.

Mitigation – Claiming input tax credits

See Millington v Waste Wise Environmental Pty Ltd 29/4/15 [2015] VSC 167 where Croft J stated that “a person who claims a loss must take all reasonable steps to mitigate the loss consequent upon the defendant’s wrong and will not be entitled to recover an amount for damages for any such loss which he, she or it could have avoided, but has failed to avoid through their own unreasonable action or inaction. While there was no positive duty here, it would be inconceivable to think – at least in the absence of any strong evidence to the contrary – that requiring a business to claim input tax credits to which it was properly entitled could be considered an unreasonable imposition. To the contrary, it would be entirely inappropriate for a Court to sanction the action, or inaction, of a plaintiff who wished to avoid what would most likely amount to a simple task of completing paperwork with which it would be highly familiar and would complete on a regular basis and then oblige a defendant to meet expenses of the plaintiff which it has incurred or not recouped due to its own unreasonable behaviour. While it was not the case here, it is also no answer to suggest that the extra administrative work involved in claiming any tax input, even if it were to involve significant cost, could properly be considered a reason not to hold the failure of a plaintiff to do so be unreasonable. A plaintiff who takes reasonable steps to mitigate its loss can claim the costs of so doing. … Accordingly, the correct application of the law relating to the mitigation of loss in this instance requires that the award of damages be reduced to the extent that Waste Wise has not acted reasonably in claiming the input tax credits to which it was entitled” @66-67.

NSW CLA s5 … Horses (incidents with)

See Paton v Bronzewing Bloodstock Pty Ltd 24/4/15 [2015] NSWDC 54 per Mahony SC DCJ, where in 2011, P, a stable hand and track work rider born 1991, “was riding a horse known as “Koi Fish” at the direction of its trainer and principal of the defendant … Whilst the plaintiff was riding that horse, it bolted and ran into a fence, causing the plaintiff to fall off the horse and suffer severe injuries, including a comminuted fracture of her right femur, a fracture of the left forearm olecranon and an injury to her lower back” @2. The common law rather than the CLA applied as it was a work injury damages claim. D “breached its duty of care to the plaintiff by requiring her to exercise a thoroughbred horse with a known history of dangerous behaviour, in an open paddock and using a racing pad as a saddle” @87. No contributory negligence found.

NSW CLA s5 … Stairs

See Lawrence v Nguyen 24/4/15 [2015] NSWDC 56 per Hatzistergos DCJ, where P was injured while descending unilluminated stairs whilst not holding onto rail. P could have turned lights on. No breach by D landlord.

NSW CLA s15B – Damages for loss of capacity to provide domestic care services

See White v Benjamin 30/3/15 [2015] NSWCA 75 where the “trial judge declined to make any allowance for time spent by the plaintiff’s husband in maintaining the garden and lawns of the family home because, he said, Mr White had ‘a direct interest in maintaining the amenity of the grounds, and because he attends to that interest, the plaintiff has no independent need requiring satisfaction’ @61. While “CSR v Eddy denied the legitimacy of an award to compensate ‘household loss’, there will be many circumstances where no clear line can be drawn between services required by the injured plaintiff and those which benefit family members. It is not necessary to inquire whether a plaintiff who lives in a house with two bathrooms uses both, or could reasonably confine herself to one. Where a service is reasonably required by the plaintiff, which is likely to cover the cleaning of the house in which she lives, the benefits to other members of the household may be disregarded. But the statutory schemes require that a plaintiff identify and establish the basis on which a particular element of an award is sought” @70. “It follows that commingling, where the elements are severable, is an impermissible approach with respect to claims for gratuitous assistance” @75. “The plaintiff’s claim for gratuitous domestic assistance in the present case turned on acceptance of her evidence that her husband undertook 1.5-2 hours per day performing the household tasks formerly performed by her … That, the plaintiff noted, supported a claim in excess of seven hours per week. The claim at trial was for seven hours per week … Once the tasks were divided between services to the plaintiff and assistance with care of her dependant children, it is apparent that neither claim would rise above six hours per week. As the children grew older, there may well have been some diminution in the time required of the parents: at least, the case presented did not provide a basis for a finding that future services would be at an increased level of intensity. The judge accepted she could carry out non-strenuous activities, such as making lunches. There is no reason to interfere with the rejection by the trial judge of the claim for gratuitous domestic services” @76-77 per Basten JA.

NSW … Brain

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. Appeal allowed in part in Hulanicki v Walton 24/4/15 [2015] ACTCA 14. Fund management on fund management awarded. Buffer for increased care in future of $150,000 awarded. “[T]he primary judge erred in reducing damages for future care by 15% for vicissitudes … An allowance for vicissitudes is built into the Life Tables.  Thus his Honour’s reduction of 15% effected a double count for vicissitudes” @40.

NSW … Foot

See Lawrence v Nguyen 24/4/15 [2015] NSWDC 56 where P in May 2013 was injured while descending unilluminated stairs whilst not holding onto rail. Following the accident, the Plaintiff drove himself to … Hospital … where he presented with pain in his left lower-limb and hip, particularly the left foot. He has complained of difficulty walking since. The attending doctor noted tenderness and swelling over the fifth metatarsal head. … [P had] an oblique fracture of the distal shaft of the fifth metatarsal with slight separation and angulation and minor commutation” @52. P “has had a period of treatment which has included treatment for the fracture and thrombosis. He was non-weight bearing for a period of time, during which he was on crutches and in a Can-Boot. He was required to take anti-coagulants before returning to full-duties in November 2013. He is now wary of running but experiences pain and discomfort in his left foot … [P’s] left foot was weaker than his right; he particularly experiences pain when he is on a slope or if he extends himself. Otherwise, he is not in receipt of any active treatment” @72-73. Hatzistergos DCJ assessed P at 15% of a most extreme case, which had D been liable amounted to general damages of $5,500. P “should see through a normal working life in his active roles as a horticulturalist or similar job” @77.

NSW … Knee

See Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd  17/4/15 [2015] NSWSC 435 where P was hit at work by a shopping trolley. Liability was not established, but damages were notionally assessed by Campbell J. P “describes the pain in her knee as ‘constant with intervals of stabbing’ (55.40T). … [S]he has pain even when she is doing nothing, has falls on occasions due to her knee giving way, has nightmares about stairs and rates the pain whilst she was sitting giving evidence as 7.5 – 8 on a scale of 1 (being a nuisance) to 10 (being excruciating) … She also said that she has pain in her back 24 hours a day and that ‘I cannot sleep at night, I have not slept right through since the accident’ … I accept … [P] is in constant pain as a result of the condition of her knee and back, and that it affects her activities of daily life significantly. … She is no longer able to enjoy the leisure and sporting pursuits she followed previously, such as horse riding. … [I]t will be necessary for her to undergo a total knee replacement if she is to adequately address her condition, and that this is likely to be needed within the next 5 years or so. … This would greatly reduce, if not eradicate, her pain, and enable her to do more of the things she loves. … [S]he is likely to continue to suffer back pain, which is the lesser problem. … [P] is a single, unemployed mother with a young child. She is currently 50 … [S]he has a life expectancy of 88 years. … [T]he severity of Ms Vincent’s case of non-economic loss is 40 per cent of a most extreme case [$229,000]” @90-92. P had pre-existing problems with her knee and back. The accident accelerated her need for a knee replacement.

Once and For All Rule

See Millington v Waste Wise Environmental Pty Ltd 29/4/15 [2015] VSC 167 where Croft J indicated that “in certain circumstances courts have been prepared to make orders which are inconsistent with the ‘once-and-for-all’ rule when faced with uncertainty as to how taxation liability may effect an award of damages” @46. The relevant authorities were canvassed. This case was not such a case.

Onus of proof – Earning capacity

See White v Benjamin 30/3/15 [2015] NSWCA 75 where P unsuccessfully argued that “once a plaintiff demonstrates some loss of earning capacity, a burden is transferred to the defendant to demonstrate with precision what residual earning capacity the plaintiff retains and the kinds of work available to the plaintiff in the area in which she lives” @46.


Voluntary/Gratuitous services – Domestic assistance

See White v Benjamin 30/3/15 [2015] NSWCA 75 re proper approach to a claim for damages for commercial domestic assistance. “Although it is not entirely clear what standard the trial judge was applying by reference to what was ‘likely’ and whether there was any ‘likelihood’, it seems that he was applying a more definitive test than that required by Malec with respect to future contingencies. Further, as is clear from the general assessment of the evidence in Miller v Galderisi undertaken by this Court … it would be wrong to place too much weight on the existence or absence of direct evidence of intention. It was open to the trial judge to place limited weight on the plaintiff’s expression of intention, although the fact that it was not challenged in cross-examination meant that it should not have been dismissed out of hand without reasons being given. It is also true that the plaintiff’s case was not helped by her failure to adduce evidence from her husband as to whether, if funds were available, he would have undertaken less household cleaning, in favour of a commercial service” @87. What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability. It may be that the approach adopted by the trial judge applied correct principles and gave consideration to all the relevant material: however, that does not appear from the reasons. I would accept that there was error in the test derived from Miller v Galderisi and the failure to apply the essentially speculative exercise required by Malec” @88-89.