Brittain v The Commonwealth of Australia

The Full Court of the Supreme Court of New South Wales heard an appeal and cross-appeal concerning issues of liability and damages. The dispute arose from a claim brought by the plaintiff, Brittain, against the Commonwealth of Australia.

The central legal issues before the Court were whether the trial judge had erred in her approach to causation in relation to damages, and whether a new trial limited to damages was appropriate given the interconnectedness of liability and damages in the original proceedings. The Court was required to consider the principles of contributory cause in the assessment of damages and the proper course to take when an appeal court finds that the assessment of damages was flawed.

The Court allowed the appeal, finding that the trial judge's approach to causation in assessing damages was incorrect. It held that a contributory cause was sufficient to establish causation for damages. Crucially, the Court determined that a new trial limited solely to damages was not appropriate because the issues of liability and damages were too closely linked in this instance. Consequently, the Court set aside the original verdict and judgment.

The Court ordered a new trial of the action with a jury, but this new trial was to be limited to all issues other than the breach of the Commonwealth's duty of care to the plaintiff. The cross-appeal was dismissed. The Court also made orders regarding the costs of the appeal and the first trial, with liberty to apply for further orders concerning the costs of the first trial.