K'mart Australia Ltd v McCann

The appeal concerned the assessment of damages for personal injuries suffered by the respondent, Mr. McCann, in an incident at a K'mart store. The primary dispute revolved around how a subsequent, unrelated event should be factored into the calculation of damages awarded for the initial injury. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the damages awarded by the District Court for Mr. McCann's injuries should be reduced to account for a supervening event that occurred after the initial injury but before the assessment of damages. Specifically, the court had to determine the correct legal principles to apply when assessing damages for a personal injury where a subsequent, unrelated event has impacted the plaintiff's capacity to earn income or has otherwise affected their loss.

The Court of Appeal reasoned that the damages awarded for the initial injury should reflect the actual loss suffered by the respondent, taking into account the supervening event. The court applied the principle that damages are intended to compensate for the loss actually sustained. Where a subsequent event, not caused by the defendant's negligence, has diminished the plaintiff's earning capacity or increased their loss, the damages awarded against the original tortfeasor should be adjusted accordingly. The court found that the District Court had erred in its assessment by not adequately accounting for this supervening event.

Consequently, the Court of Appeal allowed the appeal, setting aside the original District Court judgment of $238,541.23, except for the costs order. A substituted judgment was entered for the respondent for $95,478.73, with the order to take effect from 17 November 2003. The respondent was also granted a certificate under the Suitors' Fund Act 1951.