Category Archives: Damages

Damages – negligence – personal injuries

Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1 (1 May 1980).

“Damages – Negligence – Personal injuries – Effect of taxation liability on quantum of damages – Whether damages should be reduced by tax plaintiff would have paid in respect of earnings if he had not been injured – Gourley principle.
Practice (N.S.W.) – Judgment – Interest – Damages for personal injuries – Damages for economic loss up to date of judgment – Damages for other than economic loss – Discretion – Supreme Court Act, 1970 (N.S.W.), s. 94 (1).”

The court overruled the earlier High Court decision of Atlas Tiles Ltd v Briers (1978) 144 CLR 202 and affirmed the rule in British Transport Commission v Gourley [1956] AC 185.

Damages are to compensate the plaintiff for the loss suffered, no more or no less. If the damages are taxable income, allowance should be made for this by an award of the gross sum.  If the damages are not taxable, the award should be reduced by any tax the plaintiff would have been required to pay. If the plaintiff is entitled to a tax deduction as a result of the loss, an allowance should be made in the award.

In a claim for personal injuries damages, a court must assess the plaintiff’s pre-injury earning capacity with regards to their net income after tax.  An assessment involving gross income would result in over-compensation.

Interest on past continuing losses is not to be paid at the full rate for the whole period as this would lead to over-compensation. Instead, interest is to be paid at half the rate over the full period or at the full rate over half the period so as to take into account the gradual way in which interest accrues. The awarding of interest is a discretionary matter that must be approached in a “broad and practical way”.



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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962”

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.


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Tabet v Gett [2010] HCA 12 | 21 April 2010

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.


Sydney, Australia

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Nagle v Rottnest Island Authority [1993] HCA 76 | 21 April 1993

ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).

Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock.  It was known to Rottnest that visitors engaged in this activity.

Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.

The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”

The accident was cased by a failure on the part of Rottnest to erect a sign.

The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.


Sydney, Australia

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Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15

ON THIS DAY in 2007, the High Court of Australia delivered Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131; 81 ALJR 919 (19 April 2007).

When assessing damages, life expectancy is to be calculated with reference to the ABS projected tables (as opposed to historical tables).

Statutory payments for treatment and rehabilitation expenses are to be deducted after making an apportionment for contributory negligence.


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Hawkins v Clayton [1988] HCA 15 | 8 April 1988

ON 8 APRIL 1988, the High Court of Australia delivered Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988).

A firm of solicitors was held to be negligent by failing to take reasonable steps to locate an executor (a non-client) following the death of a testatrix (a client whose will they prepared and retained for safe keeping) for some six years after the testatrix’s death.  The solicitors were held to be liable to pay damages for the loss suffered by the executor (who was also a residuary beneficiary) in not being able to manage the estate during the period of delay.

The majority (Brennan, Deane and Gaudron JJ) held that the solicitors owed a tortious duty of care to the executor and that the action was not statute-barred.


Sydney, Australia

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Miller v Jackson [1977] EWCA Civ 6 | 6 April 1977

ON THIS DAY in 1977, the England and Wales Court of Appeal delivered Miller v Jackson [1977] EWCA Civ 6 (06 April 1977).  A cricket club was sued in negligence and nuisance caused by cricket balls landing on a neighbour’s property.  Whilst ordering damages, the court refused to grant an injunction to cease the action or further action as the game of cricket itself was considered to be in the public interest.

Lord Denning began with the following:

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”


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Nguyen v Nguyen [1990] HCA 9 | 8 March 1990

COMPENSATION TO RELATIVES. ON THIS DAY in 1990, the High Court of Australia delivered Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 (8 March 1990).

In this matter, a widower was able to claim the loss of unpaid domestic services of his late wife.

In a Lord Campbell’s Act claim, a loss may include the value of services the deceased would have provided around the home.

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Hadley v Baxendale [1854] EWHC Exch J70 | 23 February 1854

ON THIS DAY IN 1854, the Court of Exchequer Chamber delivered Hadley v Baxendale [1854] EWHC Exch J70
(1854) 9 Ex Ch 341; 156 ER 145 (23 February 1854).

The decision lays down the rule for assessing damages for breach of contract. There are two limbs: (1) losses which “may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself”; or (2) losses which “may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it”.

Per Alderson B:

“Now we think the proper rule is such as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the fats then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.”


Sydney, Australia

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Medlin v State Government Insurance Commission [1995] HCA 5 | 16 February 1995

ON THIS DAY IN 1995, the High Court of Australia delivered Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322 (16 February 1995).

Per Deane, Dawson, Toohey and Gaudron JJ said at [6]:

“For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff …which constitutes a more immediate cause of the loss or damage. … If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant’s wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.”

Per McHugh J at [20]:

“However, the ultimate question is whether, as a matter of common sense, the financial loss that the plaintiff has suffered was caused by the plaintiff’s act in resigning his office rather than by the defendant’s negligence.”

Per McHugh J at [23]:

“The plaintiff’s complaints of pain and fatigue, his decreasing confidence in his own abilities, his belief that he was no longer teaching as well as he was before the accident and his inability to find time for research combine to make a strong case for concluding that his early retirement was not unreasonable. A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff’s reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves.”



Sydney, Australia

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