DNM Mining Pty Ltd v Barwick

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.