Malec v JC Hutton Pty Ltd [1990] HCA 20

Malec v JC Hutton Pty Ltd [1990] HCA 20

Damages should be assessed to reflect the probability of future or hypothetical events occurring. A finding that there was a probability the plaintiff would have been unemployable and suffered neurotic condition independently reduces, but does not eliminate, recoverable damages. All or nothing approach applies only where historic fact is certain; for hypothetical or future events, damages are proportional to chance. Full Court erred in not awarding damages for economic loss, pain and suffering, and care after May 1982.

Jurisdiction
Australia
Procedural Posture
Appeal / Final Appeal Decision
Outcome
Appeal allowed; orders of the Full Court set aside and remitted to Master for assessment.
Legal Topics
['assessment of Damages' 'negligence' 'economic Loss' 'probability in Damages Assessment' 'psychiatric Injury']
['tort Law'] ['assessment of Damages' 'negligence' 'economic Loss' 'probability in Damages Assessment' 'psychiatric Injury']

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Procedural Posture

Appeal / Final Appeal Decision

Legal Issues

  1. 1 ["How should damages be assessed when there is probability the plaintiff would have suffered the injury regardless of defendant's negligence?" 'Is the plaintiff entitled to damages for economic loss, pain and suffering, and care after May 1982 when other causes were probable?' 'How should courts treat hypothetical and future events in assessment of damages, as opposed to historical facts?']

Ratio Decidendi

Damages should be assessed to reflect the probability of future or hypothetical events occurring. A finding that there was a probability the plaintiff would have been unemployable and suffered neurotic condition independently reduces, but does not eliminate, recoverable damages. All or nothing approach applies only where historic fact is certain; for hypothetical or future events, damages are proportional to chance. Full Court erred in not awarding damages for economic loss, pain and suffering, and care after May 1982.

Court Disposition

Appeal allowed; orders of the Full Court set aside and remitted to Master for assessment.

Orders

  • ['Set aside the order for the plaintiff to recover $36,928.47 plus interest at 10% for 4½ years.' "Substitute an order for the plaintiff to recover such sum as assessed by the Master in accordance with evidence, Full Court (Carter J.) findings, and this Court's judgment." 'Costs of assessment before the Master to be...