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Damages, mitigation

Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284. Levy DCJ. 03.11.09.

Then [44], “The defendant bears the onus of showing that the plaintiff has failed to mitigate her loss by unreasonably not submitting herself to treatment when the benefits of such treatment would have been apparent to her: Fazlic v Milingimbi Community Inc [1982] HCA 3 at [12]; (1982) 150 CLR 345,” but had failed its onus in the instant.

Hourani v Insurance Australia Group Ltd, trading as NRMA [2012] NSWDC 202. Levy DCJ.

84. The plaintiff has a duty to mitigate the adverse effects of her injuries and related disabilities. In my view, she has done so by seeking out medical advice and treatment and obtaining the treatment that is described in her evidence and in the medical reports which have been tendered. She also attended counselling sessions which also indicates that she made reasonable attempts at mitigating the effects of her injuries.

Arnott v Choy [2010] NSWCA 259. McColl JA, Basten JA agreeing. 6.10.10.

Then, [149]: “In my view there should be no deduction from the past economic loss calculations to reflect the residual earning capacity I have concluded the respondent retains.

"It is apparent from head2work’s reports that during the period to the end of 2006 the respondent was undergoing rehabilitation with a view to returning to full-time employment.

"This meant undergoing work trials, seeking to regain his driver’s licence and, generally, accepting head2work’s assistance in securing employment. Those steps were necessary because of the disabilities he suffered in consequence of the accident.

"While he had, in my view, some earning capacity during this period, he failed to exploit that capacity as part of his reasonable attempts to return to employment in the open labour market.

"Further, as I explain below, the appellant has not made good his challenge to the primary judge’s finding on mitigation – in short it was not unreasonable for the respondent not to seek employment during the two years preceding the trial.”

Past super loss was allowed at 11%.

On mitigation, her Honour said [155]: “At common law a person injured by the tortious act or omission of another must take all reasonable steps to mitigate the loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which he or she could have avoided, but has failed, through unreasonable action or inaction, to avoid: Mayne and McGregor on Damages, 12th ed (1961) Sweet & Maxwell (at [144]), referred to with approval by the Full Court of the Supreme Court of Victoria (Gillard, Menhennitt and Dunn JJ) in Tuncel v Renown Plate Co Pty Ltd [1976] VR 501 (at 503).

“The burden of proving a plaintiff has failed to mitigate his or her damages rest on the defendant: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (at 159) per Dixon CJ; Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 (at 239) per Glass JA (Moffitt P agreeing).

“The reasonableness of a person’s decision in respect of steps which might have mitigated damages is judged on the basis of the information he or she knew at the relevant time.

"A person will not have acted reasonably to avoid loss if he or she allowed baseless factors to outweigh cogent ones: Fazlic v Milingimbi Community Inc[1982] HCA 3; (1982) 150 CLR 345 (at 350); see also State of New South Wales v Fahy [2006] NSWCA 64; (2006) 155 IR 54 (at [140]) per Basten JA (Spigelman CJ and Campbell AJA agreeing) – a decision reversed in the High Court, but not insofar as the issue of mitigation was concerned: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486.

“If a defendant establishes the plaintiff has failed to mitigate his or her loss, the tribunal of fact is required to assess the plaintiff's damages on the footing that he or she had taken the hypothetical action and been endowed with its hypothetical benefits: Munce v Vinidex Tubemakers Pty Ltd (at 239).”

In application of MACA s 136, “virtually on all fours” with its forerunner 1988 Act s 39, under test in Brogan v McGeary (1995) Aust Torts Reports ¶81-342 (at 62,420), her Honour said [160]: “Kirby P observed that s 39 ‘… must be given a construction to encourage the taking of reasonable steps by injured persons to promote their restoration to economic capacity’. In his Honour’s view (at 62,422 – 62,423) the word ‘consideration’ in s 39(1) required the court ‘to reflect upon the energy with which [the injured person] pursued opportunities to find, amongst other things, alternative employment’ as well as to take into consideration the steps reasonably available to the injured person to find employment, taking into account his or her physical and emotional disabilities following the accident. Similar observations were made in Mahony v Watson [2003] NSWCA 259 (at [53]) per Sheller JA (Young CJ in Eq and Gzell J agreeing). Another factor clearly bearing on the issue of reasonableness is, as was said in Munce v Vinidex Tubemakers PL, what would have occurred had the hypothetical steps been taken.”

In [161], “A person with such disabilities might reasonably, in my view, be overwhelmed by the prospect of having to deal both with seeking employment and complying with the demands of an impending court case, particularly where many demands are made on the person to attend medical examinations. In this respect it should be noted that the period in which the respondent did not seek work coincided with the commencement of the proceedings in April 2007 and the hearing in July 2008. In my view it was open to the primary judge, having regard to the disabilities he concluded afflicted the respondent, to conclude the latter’s explanation for not seeking work in the eighteen or so months prior to trial was ‘cogent’ rather than ‘baseless’.”

Further,  Burden of mitigation 48 WCMS 1

1987 Act section 151L Mitigation of damages >>

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