ECS Group (Australia) Pty Ltd v Hobby

In the case of *ECS Group (Australia) Pty Ltd v Hobby*, the appeal concerned the assessment of damages awarded to the respondent for personal injuries sustained in an accident. The primary dispute revolved around whether the respondent's refusal to undergo surgery constituted an unreasonable failure to mitigate her damages, and whether the appellant had discharged its burden of proof in this regard. Further issues related to the adequacy of the evidence supporting the primary judge's awards for past and future attendant care services, and past and future domestic services provided to the respondent's children.

The court was required to determine whether the primary judge erred in finding that the respondent's refusal to undergo surgery was reasonable in the circumstances, and consequently, whether the damages awarded should be reduced for failure to mitigate. Additionally, the court had to assess whether the quantum of damages awarded for attendant care and domestic services was supported by sufficient evidence presented at trial.

The court reasoned that the primary judge had correctly considered the respondent's state of knowledge at the relevant time when assessing the reasonableness of her decision not to undergo surgery. The appellant had failed to discharge its onus of proving that the refusal was unreasonable. However, the court found that the evidence supporting the awards for attendant care and domestic services was insufficient, necessitating a reassessment of these components of the damages.

The appeal was allowed in part, and the cross-appeal was dismissed. The order of the primary judge was set aside, and the parties were directed to file agreed schedules of damages within seven days, or in the absence of agreement, to file their respective proposed schedules with submissions. The respondent was ordered to pay 50 per cent of the appellant's costs of the appeal, and the respondent, as cross-appellant, was ordered to pay the appellant's costs of the cross-appeal.