Johnson, Victor Ross v Hegarty, Ian Robert - [1981] FCA 158

Re: VICTOR ROSS JOHNSON
And: IAN ROBERT HEGARTY (1981)
No. ACTG4 of 1981
Damages for personal injury - Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Davies(1) and Kelly(1) JJ.

CATCHWORDS

Damages for personal injury - Plaintiff police officer - Loss of earning capacity - Superannuation Act 1976 (Commonwealth) Pension payable consequent upon injury - Mitigation of damages - Whether pension to be taken into account in reduction of damages - Whether defendant tortfeasor should have benefit of advantages conferred on plaintiff independently of right of redress against defendant.

Damages - Personal injury - Accident injuring police officer - Officer discharged from police force because of injuries - Officer entitled to statutory pension - Whether pension entitlement should be taken into account when assessing damages.

HEADNOTE

The respondent, a member of the police force at the material time, was injured in a motor vehicle accident. Because of the injuries suffered in the accident he was retired from the police force and thereupon became entitled to a pension under the Superannuation Act 1976 (Cth). The respondent obtained a verdict for damages for the injuries sustained in the accident. The appellant appealed to the Full Court of the Federal Court of Australia on the ground that the judge should have taken into account the respondent's pension entitlement when assessing the quantum of damages.

Held, per curiam, dismissing the appeal, that receipt by the respondent of a pension under the Superannuation Act 1976 up to the date of the trial and thereafter should not be taken into account in assessing the respondent's damages.

Graham v. Baker (1961), 106 CLR 340; Jones v. Gleeson (1965), 39 ALJR 258, applied.

National Insurance Co. of New Zealand Ltd. v. Espagne (1961), 105 CLR 569; Parry v. Cleaver, (1970) AC 1; Paff v. Speed (1961), 105 CLR 549, considered.

HEARING

Canberra, 1981, July 20; September 24. #DATE 24:9:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory (Lockhart J.) awarding damages for personal injuries to the respondent.

C. G. Gee, for the appellant.

J. B. Norris, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Abbott Tout Creer & Wilkinson.

Solicitors for the respondent: Snedden Hall & Gallop.

E. F. FROHLICH

ORDER

The appeal be dismissed.

The cross-appeal be allowed so that there will be, in substitution for the judgment of the Supreme Court of the Australian Capital Territory, judgment for the respondent in the sum of $109,500 and costs.

The appellant pay the respondent's costs of and incident to the appeal and cross-appeal, those costs to be taxed.

JUDGE1

The respondent who was born on 6 August 1943 and who had been a member of the Police Force of the Australian Capital Territory since mid-1969 was injured in a motor vehicle accident on 10 June 1975. Between the date of the accident and 17 August 1978 he lost at least 136 days' pay through injuries sustained in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1981] FCA 158
Decision Date: 24 SEPTEMBER 1981

CaseChat Overview and Summary

The appeal and cross-appeal in this matter arose from a personal injury case involving Victor Ross Johnson, a police officer, and Ian Robert Hegarty. The plaintiff, Johnson, sought damages for injuries sustained in a motor vehicle accident caused by the defendant, Hegarty. The central dispute was the calculation of damages for the plaintiff's loss of earning capacity and the impact of a pension received under the Superannuation Act 1976 (Cth) on those damages. The case was heard in the Federal Court of Australia.

The legal issues before the court involved the determination of whether the pension received by the plaintiff should be taken into account when calculating the damages for loss of earning capacity, and whether the defendant should benefit from the advantages conferred on the plaintiff independently of the right of redress against the defendant. The court had to decide if the pension should reduce the damages awarded to the plaintiff, and whether the defendant should gain from the pension as a result of the accident.

The court held that the pension should be taken into account in the calculation of damages for loss of earning capacity. The reasoning was based on the principle that damages should reflect the actual loss suffered by the plaintiff. Since the pension was a direct consequence of the plaintiff's injury and provided compensation for the loss of earning capacity, it was appropriate to consider it in the damages calculation. The court also found that the defendant should not benefit from the advantages conferred on the plaintiff independently of the right of redress against the defendant. Therefore, the pension did not reduce the damages payable to the plaintiff.

In its final orders, the court dismissed the appeal and allowed the cross-appeal. Judgment was entered in favour of the defendant in the sum of $109,500, with costs awarded to the defendant for both the appeal and the cross-appeal. The costs were to be taxed.

Orders

Orders of the court

The appeal be dismissed.

The cross-appeal be allowed so that there will be, in substitution for the judgment of the Supreme Court of the Australian Capital Territory, judgment for the respondent in the sum of $109,500 and costs.

The appellant pay the respondent's costs of and incident to the appeal and cross-appeal, those costs to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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