Category Archives: Damages

Damages, LAW FIRM, Personal Injury

CSR Limited v Eddy [2005] HCA 64

ON 21 OCTOBER 2005, the High Court of Australia delivered CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59 (21 October 2005).

http://www.austlii.edu.au/au/cases/cth/HCA/2005/64.html

The High Court overruled the NSW Court of Appeal decision of Sullivan v Gordon, holding that a person who claims damages for personal injuries cannot claim special damages for the loss of capacity to care for a disabled family member that they would have cared for had they not been injured.

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Damages, LAW FIRM, Medical negligence, Negligence

Cattanach v Melchior [2003] HCA 38

ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003).

http://www.austlii.edu.au/au/cases/cth/HCA/2003/38.html

A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. She told the doctor that she believed that her right fallopian tube had been removed when she was 15. The doctor performed a tubal ligation on the left fallopian tube and made no further investigation regarding the right tube. As it turned out, the right tube had not been removed and the woman later fell pregnant, unintentionally.

The woman and her husband sued the doctor and the State of Queensland (who ran the hospital) seeking damages for negligence on the grounds that the doctor failed to advise the woman of the risks of conceiving without specific investigation of the right fallopian tube.

The woman and her husband were awarded damages for the costs of raising and maintaining the healthy but unintended child, despite those damages being for pure economic loss (ie not arising from any actual injury).

The Civil Liability Acts have since prohibited awards of damages for the costs of rearing or maintaining a child or the parents’ loss of earnings whilst rearing or maintaining a child.

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Civil procedure, Damages, LAW FIRM, Law reform, Negligence

Civil LIability Act 2003 (Qld)

ON 4 MARCH 2003, the Queensland Parliament passed the Civil Liability Act 2003 (Qld).  The Act is taken to have commenced on 2 December 2002.

http://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161

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Costs, Damages, Defamation, LAW FIRM

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

ON THIS DAY in 2002, the NSW Court of Appeal delivered Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2002/419.html

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Civil procedure, Compensation to relatives, Damages, Disability Law, Insurance Law, LAW FIRM, Law reform, Legislation, Negligence, Personal Injury, Professional negligence

Civil Liability Act 2002 (NSW)

ON THIS DAY IN 2002, some parts of the Civil LIability Act 2002 (NSW) are taken to have commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

 

Damages, Duty of Care, Landmark cases, LAW FIRM, Personal Injury, Work injuries, Workers Compensation

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

ON 23 APRIL 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.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Damages, LAW FIRM, Personal Injury

Motor Accidents Compensation Act 1999 (NSW)

ON 1 OCTOBER 1999, the Motor Accidents Compensation Act 1999 (NSW) commenced.

The Act introduced significant changes to assessment of damages for personal injuries arising from the use or operation of a motor vehicle in NSW. Such changes included:

  • The establishment of the Motor Accidents Assessment Service (MAAS) of the Motor Accidents Authority, consisting of the Claims Assessment and Resolution Service (CARS) and Medical Assessment Service (MAS).
  • The requirement that a s91 certificate be issued by CARS before court proceedings may be commenced.
  • The requirement that CARS assess claims in which the insurer has admitted fault and that the assessments be binding on the insurer but not the claimant.
  • The requirement that MAS assess medical treatment or permanent impairment disputes.
  • Caps on damages for non-economic loss, domestic services and loss of earnings.
  • Thresholds to entitlement to damages for domestic services and non-economic loss, including a greater than 10% permanent impairment threshold for non-economic loss.
  • Abolition or damages for loss of services.
  • Restrictions on damages for compensation to relatives.
  • Restrictions on interest.
  • Restrictions on legal costs.

Motor accident claims have also been affected by the subsequent enactment of the Civil Liability Act 2002 (NSW) and the Motor Accidents (Lifetime Care and Support) Act 1996 (NSW).

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Damages, Evidence, LAW FIRM, Motor Accidents, Personal Injury

Sullivan v Gordon [1999] NSWCA 338

ON 22 SEPTEMBER 1999, the NSW Court of Appeal delivered Sullivan v Gordon [1999] NSWCA 338 (22 September 1999).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/1999/338.html

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Damages, LAW FIRM, Personal Injury

Husher v Husher [1999] HCA 47

ON 9 SEPTEMBER 1999, the High Court of Australia delivered Husher v Husher [1999] HCA 47; 197 CLR 138; 165 ALR 384; 73 ALJR 1414 (9 September 1999).

The injured plaintiff was in partnership with his wife but in effect was a sole tradesman with no employees. The High Court held that where an injured plaintiff operates through a corporate or partnership structure in order to minimise his or her tax liability, damages are to be assessed with reference to the full vale of the plaintiff’s earning capacity, not his or her taxable income.

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Damages, Duty of Care, LAW FIRM, Negligence

Perre v Apand Pty Ltd [1999] HCA 36

ON 12 AUGUST 1999, the High Court of Australia delivered Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180; 64 ALR 606; 73 ALJR 1190 (12 August 1999).

http://www.austlii.edu.au/au/cases/cth/HCA/1999/36.html

Apand was a potato crisp manufacturer who caused a South Australian potato farmer’s potatoes to be infected by supplying him with infected seeds. Neighbouring farms were prohibited from exporting their potatoes to the lucrative Western Australian market for a period of 5 years by reason of being located within 20km of the infected farm.

Pere and his neighbours sued Apand for the economic loss resulting from the loss of access to the Western Australian market.

Five of the judges (Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ) held that Apand owed a duty of care to all the plaintiffs; the others (McHugh and Hayne JJ) held that only some of the plaintiffs were owed a duty of care.

The court (apart from Kirby J) rejected the idea that proximity is the determinant or “unifying criterion” of the duty of care.

The decision contains seven judgments with four different tests for determining a duty of care for pure economic loss.

Gleeson CJ, Gummow J, Callinan J, Hayne J, in separate judgments, took the view that the duty of care is to be identified by looking at the salient features of the case. They offer a flexible approach that avoids a strict formulation.

Gaudron J found that a duty of care arose in the context of defendant being in a position of control and being able to affect the plaintiff’s legal rights and the plaintiff’s dependence on the defendant.

McHugh J favoured the incremental approach, which identifies the following features as being relevant to a duty of care:

  • reasonable foreseeability.
  • indeterminacy of liability.
  • unreasonable burden on individual autonomy in the market.
  • vulnerability of the plaintiff.
  • the defendant’s knowledge of the risk to a particular plaintiff.

Kirby J favoured foreseeability, proximity and policy, adopting the three stage English test in Caparo Industries Plc v Dickman [1990] 2 AC 605.

The court affirmed it’s earlier decision in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” that there is no absolute exclusionary rule for the recovery of damages for pure economic loss and it is therefore possible for a plaintiff to recover for pure economic loss when “the defendant has knowledge…that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence.”

The court rejected the notion that pure economic loss may only be recovered in circumstances of negligent misstatement as in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd.

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