Damages slashed for lost earning capacity & gratuitous care

Sampco Pty Ltd v Wurth [2015] NSWCA 117

The plaintiff at trial was awarded $456,500 but on appeal to the NSW Court of Appeal her damages were reduced $73,800. Determinative of the reduction was that the plaintiff failed to establish the secondary injury to her knee was causally related to the negligence (section 5D(1)(a) of the Civil Liability Act (NSW) 2002).

Hence, apart from a reduction to her General damages (28%) the plaintiff’s future loss of income or earning capacity was reduced from $130,000.00 down to $30,00000.

In respect of gratuitous care the trial judge determined the plaintiff met the CLA threshold of 6 hours per week for 6 months and awarded $47,219.56 for past care and $169,881.00 for future care. On appeal, it was held the threshold was not met because the left knee injury was not causally related and thus no allowance for gratuitous care was made.

The Court of Appeal also considered the NSW authorities (Gordon v Truong; Truong v Gordon [2014] NSWCA 97Miller v Galderisi [2009] NSWCA 353) and found the plaintiff was not entitled to future commercial assistance where she was receiving gratuitous assistance, and there is was no evidence the gratuitous care could not be continued or sustained.

David Cormack – Brisbane Barrister & Mediator

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