Mitigation of damages – whether plaintiff’s refusal to undergo surgery was unreasonable

ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193

 

Before Gleeson JA at [1];
Sackville AJA at [2];
McDougall J at [75] 
Decision

1. Appeal allowed in part.

2. Cross-appeal dismissed.

3. Set aside Order 1 made by Mahony SC DCJ on 1 May 2013.

4. The parties file within seven days an agreed schedule of damages reflecting the reasons in this judgment.

5. In the absence of agreement, the appellant file and serve its proposed schedule of damages with brief written submissions in support within seven days.

6. The respondent file her proposed schedule of damages with brief written submissions in support, within a further seven days.

7. The respondent pay 50 per cent of the appellant’s costs of the appeal.

8. The respondent/cross-appellant pay the appellant/cross-respondent’s costs of the cross-appeal.

 

 

Catchwords TORTS – mitigation of damages – whether plaintiff’s refusal to undergo surgery was unreasonable – whether defendant discharged its burden of proof – whether the plaintiff’s state of knowledge at the relevant time was taken into accountTORTS – award of damages for past and future attendant care services – whether award of damages made by the primary Judge was supported by evidence

TORTS – award of damages for past and future domestic services provided to children – whether award of damages made by the primary Judge was supported by evidence

 

 

David Cormack – Brisbane Barrister.

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