Category: Damages – Personal Injury
-
Nominal Defendant v Livaja: injury, impairment and incapacity
Nominal Defendant v Livaja [2011] NSWCA 121 [65] There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant…
-
Increased income after injury does not preclude damages for future loss
Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295 Increased income does not necessarily preclude damages for future loss of earning capacity: see Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 at 533-534 (Dixon CJ and McTiernan J). The evidence indicated a decrease in Mr Rindfleish’s earning capacity in terms of the level of…
-
Psychiatric injury and foreseeability in the employment context
Karzi v Toll Pty [2024] NSWCA 120 101 These three cases, Koehler, Kozarov and Stevens illustrate how fact-specific torts cases are and how the principles operate in different factual situations. They highlight why the High Court in Koehler held that the nature and extent of the employee’s work were significant when addressing whether the employer…
-
Mental harm: consequential and pure, under s 32
Consequential Dungan v Padash [2021] NSWCA 66 Section 32 of the Civil Liability Act 2002 (NSW) provides that a defendant does not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances…
-
Damages for disappointment and distress: Moore v Scenic Tours
Disappointment & Distress On 24 April 2020, the High Court allowed the appeal by Mr Moore: Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“the High Court’s judgment”). The High Court held that Mr Moore and the group members were entitled to damages for distress and disappointment pursuant to s 267(4) of the…
-
Appellate review of an award of non-economic loss
White v Redding [2019] NSWCA 152 Non-economic loss Relevant statutes and legal principles At common law, general damages for pain and suffering resulting from personal injury were “almost entirely [a] matter of impression and of common sense, and [were] only subject to review in very special cases” (Miller v Jennings [1954] HCA 65; (1954) 92…
-
Fuller v Avichem Pty Ltd: principles for residual earning capacity
Fuller v Avichem Pty Ltd (t/as Adkins Building & Hardware) [2019] NSWCA 305 [45] The following principles are applicable to the determination of whether a plaintiff such as Mr Fuller has residual earning capacity: Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has…
-
Vicissitudes and life expectancy
Section 13 of the Civil Liability Act 2002 (NSW) applies to damages for future economic loss both in respect of “future earning capacity” and “other events on which the award is to be based”. The latter category includes damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses. Sub-section (2)…
-
Pre-existing medical conditions, aggravation and the burden of proof
TORTS – negligence – apportionment of responsibility and damages – medical negligence – whether pre-existing condition was progressively deteriorating – whether causation was established – whether assessment of damages could be challenged – challenges to findings of fact and damages dismissed