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Damages, vicissitudes

Vosebe PL v Bakavgas & Ors [2009] NSWCA 117. Hodgson JA, Beazley JA agreeing, Basten JA agreeing bar future economic loss. 22.05.09.

Basten JA detailed aspects of the medical evidence, noted authorities including Watts v Rake [1960] HCA 58; 108 CLR 158 at 160; Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 168; Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Shorey v PT Limited [2003] HCA 27, Commonwealth of Australia v Elliot [2004] NSWCA 360 at [78]-[79], Seltsam v Ghaleb [2005] NSWCA 208; 3 DDCR 1, and the text, H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002).

Basten JA said [143]: “Section 13(1) of the Civil Liability Act requires that the Court determine the plaintiff’s ‘most likely future circumstances but for the injury’. That is to be understood as referring to the circumstances within the range of possibilities, which are more likely than any others to eventuate: see, eg, RTA v Chandler [2008] NSWCA 64 at [55].

"Further, s 13(2) requires that the Court adjust the damages ‘by reference to the percentage possibility that the events might have occurred but for the injury’. That exercise requires the application of Malec principles: see Najdovski v Crnojlovic [2008] NSWCA 175 at [49]. S 13 only applies to the assessment of future economic loss.”

His Honour contrasted the general NSW acceptance of 15% vicissitudes in Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485 at 497-498, with the later demur of McHugh JA in De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 at [99], noting a Western Australian general rate of 5%.

Infra [153], Basten JA said: “In Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; 122 CLR 649 at 659 Barwick CJ identified ‘ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis’ as the principal factors affecting future earning capacity.

"In Wynn, at 497, the joint judgment noted Professor Luntz’s identification of ‘sickness, accident, unemployment and industrial disputes’ as the four major contingencies, other than death, likely to result in a loss of income.”

The evidence warranted appellate interference, Basten JA said infra [156], adding: “I would allow the appeal to this limited extent, and discount the amounts on account of future economic loss by a figure of 50%, to cover both general contingencies (15%) and the specific likelihood that the plaintiff would not, but for the injury, have exercised his earning capacity to the full (35%).”

Orders as per Hodgson JA.

FurtherGlassed gyprocker 34 WCMS 1

Miller v Galderisi [2009] NSWCA 353. The Court (Allsop P, Basten & Macfarlan JJA) 

[24] In awarding damages for loss of earning capacity, allowance is routinely made for contingencies or vicissitudes which may, absent the tortious injury, have caused loss in any event. Conventionally, a figure of 15% is allowed for such contingencies: see State of New South Wales v Moss (2000) 54 NSWLR 536 at [31]- [33] and the authorities referred to, including Wynn v NSW Insurance Ministerial Corporation  (1995) 184 CLR 485 at 497-498. Superannuation loss allowed at 11%.  

1987 Act s 151G   Only damages for past and future loss of earnings may be awarded >>

MACA 1999 s 126 Future economic loss—claimant’s prospects and adjustments >>

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