BI (Contracting) Pty Ltd v Strikwerda

BI (Contracting) Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning damages awarded to Mr Strikwerda (the respondent) following the death of his father, Mr Strikwerda senior, from a dust-related condition. The respondent’s claim was brought both as a dependant’s action under the *Civil Liability Act 1936* (SA) and as a survival action under the *Survival of Causes of Action Act 1940* (SA).

The central legal issues before the Court of Appeal were whether the primary judge had erred in calculating the damages awarded to the respondent. Specifically, the court considered whether the primary judge had correctly applied the principle that pecuniary benefits received by the respondent as a beneficiary under his father’s intestacy should be offset against the damages awarded. This involved determining the onus of proof regarding the capacity of the deceased’s estate to pay the respondent’s entitlement, particularly in circumstances where the estate had been swollen by the proceeds of the deceased’s own survival action, leading to an evidentiary stand-off at trial.

The Court of Appeal reasoned that the primary judge had erred in failing to properly consider the impact of the intestacy on the damages calculation. The court held that the respondent bore the persuasive burden of establishing the extent to which the deceased’s estate was capable of satisfying his beneficial interest, and thus the extent to which any damages awarded should be reduced. The evidentiary burden shifted to the appellant to demonstrate the specific amount of the distributable estate and the respondent’s share therein. The court found that an evidentiary stand-off had occurred, and the primary judge had not correctly allocated the onus of proof in relation to the computation of damages.

The appeal was upheld.