Marinko v Masri

In *Marinko v Masri*, the plaintiff, Mr. Marinko, appealed a decision of the Supreme Court of New South Wales concerning damages awarded to him following a permanent brain injury sustained by his wife during an abortion. The wife's estate was managed by the Protective Commissioner under the *Protected Estates Act 1983*. The Supreme Court had awarded amounts to the wife for past gratuitous care and future care and management, with Mr. Marinko being the principal carer. The dispute on appeal concerned whether Mr. Marinko should claim payment from the Protective Commissioner for the amount awarded to the wife for past voluntary services he provided, whether there was a failure to mitigate, and whether there was "double dipping" in the awards for past gratuitous care to the wife and past economic loss to the husband. Further issues related to the apportionment of past and future economic loss for nervous shock consequent on his wife's injury, and whether carer's benefits and maintenance payments should have been deducted from the economic loss award.

The court was required to determine several key legal issues. Firstly, it had to consider whether the husband, as the principal carer, was entitled to claim payment from the Protective Commissioner for the portion of the damages awarded to his wife that represented his past gratuitous services. Secondly, the court needed to assess whether the husband had failed to mitigate his loss. Thirdly, it was to decide if the awards for the wife's past gratuitous care and the husband's past economic loss constituted impermissible "double dipping". Fourthly, the court had to determine if the apportionment of past and future economic loss for nervous shock should have reflected the husband's non-compensable grief and depression. Finally, the court was asked to consider whether carer's benefits under the *Social Security Act* and maintenance payments made by the Protective Commissioner should have been deducted from the award for economic loss.

The court allowed the appeal in part and dismissed the cross-appeal, setting aside the judgment of the Supreme Court, except as to costs. The court substituted a judgment for the plaintiff, comprising general damages including interest of $62,223.33 and past wage loss including interest of $258,700.00, with effect from 4 June 1998.