Negligence Cases (Jul – Oct)

The President of the Court of Appeal helpfully discusses a number of heads of damages, including capital costs and care. In particular reference is drawn to the capital costs and the issue of an $8,000.00 error in the learned primary judge’s award.

[19] In determining these issues, the New South Wales Court of Appeal decision of Weideck v Williams is of relevance. The court relying on Todorovic v Waller, observed that the principle to be applied when considering the cost of suitable accommodation to meet the needs of injured plaintiffs is that the assessment should, as far as money can do, place plaintiffs in the same position as if they had not sustained the injuries. The court rejected the notion of any fixed principle that the cost of a notional basic home is necessarily excluded from an award of damages, adding: “The award must take into account the facts of the particular case. In some cases, it will be anticipated that the injured plaintiff will live in an institution. In those cases, the cost of the purchase of a home is irrelevant. In some cases, it will be anticipated that the injured plaintiff will continue to live in his or her existing home. In such a case, only the cost of modifying the home will be taken into account. In other cases, it will be anticipated that the injured plaintiff must move from an existing home to another home more suitable to the plaintiff in his or her injured state. In those cases, the standard of the accommodation in which the plaintiff was accustomed to live will be a relevant factor. In other cases, if the plaintiff has lived prior to the injury, not in his or her own home, but in a boarding house or a caravan or in rented accommodation, the award of damages must take this into account.”

And at paragraph 31:

In the unusual facts of this case, I consider that the judge was entitled, consistent with the approach taken in Weideck v Williams, to allow the cost of the purchase of the barn and its modification.

 In respect of an $8,000 error at paragraph 33:

 But this error does not necessarily mean the appeal must be allowed. As Mason P explained in Harrison v Melhem, citing Robinson v Riley, an appellate court should decline to interfere with individual components of a damages award, unless satisfied that the award as a whole is unduly high or unduly low. In the context of the overall award received by Ms Munzer of $1,299.459.63; the amount of $8,000 is so small that, unless the appellants were successful in their other attempts to challenge the damages award, it would not justify this Court’s interference: see Elford v FAI General Insurance Company Limited and Mount Isa Mines Limited v Peachey.

A  review of the  Civil Liability Act 2003 (“CLA”) and Regulations together with consideration of past and future economic loss in particular.

British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd[1912] AC 673; Chappel v Hart (1998) 195 CLR 232; Matters v Baker and Fawcett[1951] SASR 91; Rogers v Whitaker (1992) 175 CLR 479; Rosenberg v Percival (2001) 205 CLR 434 & Smith v Commonwealth of Australia (2006) NSWSC 689.

Brisbane Barrister – David Cormack

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