K'Mart Australia Ltd v McCann [2004] NSWCA 283

K'Mart Australia Ltd v McCann [2004] NSWCA 283

The District Court erred by awarding economic loss for the 16-month period when the respondent did not work because of an unrelated supervening stress attack; that event had to be taken into account and no damages were recoverable for that period. The evidence supported some past economic loss before the stress attack, but did not support future economic loss calculated at $250 per week; future economic loss was properly assessed as a $30,000 buffer. The award for future medical expenses was supported by the evidence and was not disturbed.

Jurisdiction
Australia
Judgment Date
25 August 2004
Procedural Posture
Appeal From District Court Assessment of Damages for Personal Injuries / Appeal
Outcome
Appeal allowed with costs; District Court judgment set aside except as to costs and substituted with judgment for the respondent for $95,478.73.
Legal Topics
['assessment of Damages' 'past Economic Loss' 'future Economic Loss' 'future Medical Expenses' 'unrelated Supervening Event' 'civil Liability Act 2002 S 13']
['damages' 'personal Injuries' 'torts'] ['assessment of Damages' 'past Economic Loss' 'future Economic Loss' 'future Medical Expenses' 'unrelated Supervening Event' 'civil Liability Act 2002 S 13']

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Procedural Posture

Appeal From District Court Assessment of Damages for Personal Injuries / Appeal

Legal Issues

  1. 1 ["Whether the District Court erred in assessing past economic loss for periods before and after the respondent's unrelated stress attack." "Whether an unrelated supervening stress attack that extinguished the respondent's earnings for 16 months had to be taken into account in assessing damages." 'Whether future economic loss should be assessed at $250 per week to age 65 or by way of a buffer.' 'Whether the award of $20,000 for future medical expenses should be disturbed.']

Ratio Decidendi

The District Court erred by awarding economic loss for the 16-month period when the respondent did not work because of an unrelated supervening stress attack; that event had to be taken into account and no damages were recoverable for that period. The evidence supported some past economic loss before the stress attack, but did not support future economic loss calculated at $250 per week; future economic loss was properly assessed as a $30,000 buffer. The award for future medical expenses was supported by the evidence and was not disturbed.

Court Disposition

Appeal allowed with costs; District Court judgment set aside except as to costs and substituted with judgment for the respondent for $95,478.73.

Orders

  • ['Appeal allowed with costs.' 'Judgment of the District Court for $238,541.23 set aside except as to costs.' 'Substitute a judgment for the respondent for $95,478.73 with effect from 17 November 2003.' "The respondent to have a certificate under the Suitors' Fund Act 1951."]