Fail v Hutton

Fail, a plaintiff, brought an action against Hutton, the defendant, following an incident that resulted in personal injuries. The plaintiff claimed damages for loss of earnings and earning capacity, and the defendant sought to limit the quantum of damages payable. The case was heard in the Supreme Court of Victoria. The primary dispute centred around the appropriate measure of damages for the plaintiff's loss of earning capacity, particularly given that the plaintiff's earning capacity was in a state of flux due to a transition from being a sub-contractor to a direct contractor at the time of the incident. The court was also required to decide whether payments made under the plaintiff's income protection insurance policy should be taken into account when calculating interest on the past loss.

The court considered the particular circumstances of the plaintiff's employment and earning capacity at the time of the incident. It concluded that the plaintiff's earning capacity was indeed changing and that the damages should be assessed in light of this transition. The court determined that the plaintiff's transition from sub-contractor to direct contractor was not a speculative or remote possibility, but rather a realistic prospect that should be factored into the calculation of damages. The court also found that the defendant was not obliged to raise the issue of income protection insurance payments at trial and that such payments should be considered when calculating interest on the past loss.

The Supreme Court of Victoria dismissed the appeal brought by the defendant, finding that the primary judge had correctly assessed the plaintiff's loss of earning capacity and had appropriately taken into account the particular circumstances of the case. The court held that the defendant was not required to raise the issue of income protection insurance payments at trial, and that such payments should be included in the calculation of interest on past loss. Consequently, the plaintiff was awarded damages for loss of earnings and earning capacity, with interest calculated as per the court's direction. The defendant was ordered to pay the plaintiff's costs of the appeal, which were to be assessed.