DNM Mining Pty Ltd v Barwick

Case [2004] NSWCA 137

NEW SOUTH WALES COURT OF APPEAL

CITATION:      DNM Mining Pty Ltd v Barwick [2004]  NSWCA 137

FILE NUMBER(S):
40305/03

HEARING DATE(S):               16 March 2004

JUDGMENT DATE: 17/05/2004

PARTIES:
DNM Mining Pty Ltd - Appellant
Anthony Barwick - Respondent

JUDGMENT OF:       Giles JA Santow J Windeyer J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 261/01

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

COUNSEL:
G F Little SC & A J Black - Appellant
P R Hessessy SC & E Romaniuk - Respondent

SOLICITORS:
Hicksons - Appellant
Farrell Lusher, Wagga Wagga - Respondent

CATCHWORDS:
Damages - tortious injury - subsequent non-tortious injury - would independently have diminished the earning capacity diminished by the first injury - whether taken into account in assessing damages.  D

LEGISLATION CITED:

DECISION:
(1)  Appeal allowed;  (2)  Set aside verdict and judgment for $404,452.59 and in lieu thereof verdict and judgment for $227,408.76 taking effect on 25 March 2003;  (3)  Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40305/03
DC  276/01

GILES JA
SANTOW JA
WINDEYER J

Tuesday 18 May 2004

DNM MINING PTY LTD v BARWICK

Judgment

  1. GILES JA:  This is an employer’s appeal from a judgment in favour of an injured worker.  The appeal is confined to the damages for past economic loss and future economic loss, being the amounts of $90,022.45 and $168,511.30 plus superannuation.  The appellant’s primary submission is that the amounts should be $49,493.00 and nil.  In issue is how the damages should have been assessed when the respondent’s earning capacity was diminished by the injury for which the appellant was liable and was then diminished by an injury for which the appellant bore no responsibility.

    The respondent’s employment and successive injuries

  2. The respondent was dyslectic and had learning difficulties at school.  He was good at sports, but was virtually unable to read or write.  Prior to his employment with the appellant he had a number of unskilled jobs, doing casual landscape gardening, as a farm hand and as a driver’s offsider.

  3. In March 1995 the respondent began employment with the appellant at its gold mine at Mineral Hill near Condobolin.  He worked as a miner.  He had a neck condition bringing some pain to his neck and shoulders, but it did not impede his work. 

  4. On 4 September 1995 a piece of rock fell from the roof of the mine tunnel onto the respondent’s lower back.   He went to a doctor, who said that his injury was muscular.  After about a week he returned to work, but with pain.  Further investigation showed a fracture of the transverse process of the first lumbar vertebra, and he was certified unfit for work.  The judge appears to have accepted that he also suffered “a severe ligamentous or soft tissue injury” to his back.  He returned to work on light duties on occasions in the latter part of…

Continue reading DNM Mining Pty Ltd v Barwick

Sign in free to access the full text

Details
AGLC
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137
Case
[2004] NSWCA 137
Decision Date

CaseChat Overview and Summary

The case of DNM Mining Pty Ltd v Barwick concerned an appeal from a judgment awarding damages for tortious injury. The dispute centred on how to assess the plaintiff's loss of earning capacity when a subsequent, non-tortious event had also diminished that capacity. The appeal was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether, in assessing damages for a tortious injury that reduced the plaintiff's earning capacity, the court should take into account a subsequent, independent event that would have independently diminished that same earning capacity. The plaintiff argued, relying on *Baker v Willoughby*, that if the subsequent cause was compensable, the entire causal effect should be attributed to the prior tortious cause, effectively disregarding the later event.

The court allowed the appeal, reasoning that the object of damages is to place the plaintiff in the position they would have been in had the tort not occurred. Damages for economic loss are for the loss of earning capacity, and this capacity has no value unless it is exercisable. Therefore, when assessing damages, it is necessary to allow for contingencies, including the possibility that earning capacity would have been lost in whole or in part from a cause independent of the defendant's tort. If such an event occurs before the assessment, it must be taken into account as an actuality rather than a contingency. The court applied the principles from *Jobling v Associated Dairies Ltd* and the reasoning of Windeyer J in *Faulkner v Keffalinos*, holding that the subsequent event does not diminish the damages recoverable for the first accident but rather provides a measure of what must be taken into account in assessing the loss.

Consequently, the court set aside the original verdict and judgment and entered a reduced verdict and judgment in favour of the plaintiff. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside verdict and judgment for $404,452.59 and in lieu thereof verdict and judgment for $227,408.76 taking effect on 25 March 2003; (3) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The qualification is that, and with manifest diffidence on the part of his counsel, the respondent submitted that where the subsequent of the multiple causes each sufficient to produce the incapacity was tortious, the law would attribute the whole of the causal effect to the prior tortious cause: Baker v Willoughby (1970) AC 467. He said that that was because the later cause was compensible, and that because he was entitled to workers compensation with respect to the car accident it was to be regarded as a compensible cause. So, it was said, the injury from the car accident was to be put aside. Was the judge in error: decision The object of damages awarded for tortious injury is to put the plaintiff in the same position, so far as money can do so, as he would have been in if he had not been injured. Damages for economic loss are conceptually for loss of earning capacity (see for example Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4, 16; Husher v Husher (1999) 197 CLR 138 at 143). Damages are not recoverable unless the loss of earning capacity has been or will be productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347; Medlin v State Government Insurance Commission at 3). In effect, the lost earning capacity is valued according to the earnings it would have brought to the plaintiff. In recognition of the object of the award of damages, it is necessary to allow, amongst other positive and negative contingencies, for the contingency that the lost earning capacity would have been lost in whole or part from a cause independent of the defendant’s tortious act. The earnings which the lost earning capacity would have brought to the plaintiff would have been more or less according to the duration and extent of its exercise, and there would be over-compensation if the lost earning capacity were valued regardless of the possibility that it would otherwise have been lost. Since the court acts on facts rather than speculation where it can, if prior to the hearing there has been an event which would independently have caused loss in whole or part of the lost earning capacity, that event must be taken into account in determining the duration or extent of the exercise of the lost earning capacity and so in arriving at the plaintiff’s damages. This was the reasoning in Jobling v Associated Dairies Ltd and the judgment of Windeyer J in Faulkner v Keffalinos. It is compelling, however difficult it may sometimes be to apply it to the facts. Conformably with it, a plaintiff’s damages are assessed according to the fact rather than the contingency that his earning capacity is later wholly lost from the independent event of death (Jaksic v Cossar (1966) 2 NSWR 581) or illness (Jobling v Associated Dairies Ltd), or lost for a period of time from an independent event such as a heart attack (Bridge Printing Pty Ltd v Mestre [1999] NSWCA 342). The known contingency in Leschke v Jeffs (1955) QWN 67 was the plaintiff’s imprisonment for ten years, which was regarded as diminishing his earning capacity while in prison and on the labour market after his release: it could alternatively be seen as going to the exercise of his earning capacity. As was said by Windeyer J in Faulkner v Keffalinos at 85 -“The impairment of a faculty, such as a capacity to earn money, is not like damage to property. The capacity has no value unless it be exercisable. It is only while, and for so long as, it can be exercised that an impairment of it can produce a pecuniary loss. It is for this reason that in assessing damages for the destruction or reduction of earning capacity an allowance must ordinarily be made for the contingency – if in the particular case it is seen as a reasonable possibility – of interruptions of a man’s working life by periods of unemployment, sickness or accident. If in fact any of such things occurs before the assessment has to be made, what would have been allowed for as a possibility has become an actuality: the risk of an interruption of earnings has materialised and a hypothetical deduction to be made in the computation of damages has crystallized. It is therefore a mistake to think of damages recoverable for the consequences of the first accident as diminished by the second accident. So far as the damages result from the impairment of earning capacity, the second accident merely supplies a measure of one thing that must be taken into account, namely the risk of an accident.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.