Nominal Defendant (Queensland) v Nilon

The High Court of Australia heard an application for special leave to appeal concerning two actions heard together in the Supreme Court of Queensland. The applicant, the Nominal Defendant, sought leave to appeal a decision of the Full Court of the Supreme Court of Queensland. The first respondent was the plaintiff in both actions, having suffered injuries in two separate motor vehicle accidents involving different tortfeasors. The first accident occurred on 30 September 1976, causing injury to the plaintiff's lumbar spine, a pre-existing congenital condition that was then asymptomatic. The second accident occurred on 9 April 1982, where the plaintiff alleged further damage to the same part of his spine.

The central legal issue before the High Court was the correct principle for assessing damages when a plaintiff suffers two distinct injuries from separate tortfeasors, where the second injury exacerbates or affects the consequences of the first. Specifically, the applicant argued that the trial judge, Mr Justice Demack, had not applied the correct principles in assessing the damages awarded to the first respondent. The applicant contended that the damages should have been assessed by first calculating the damages attributable to the first accident in isolation, and then separately assessing the additional damage caused by the second accident, either by assessing the plaintiff's condition after both accidents and deducting the first award, or by assessing the second accident's damages with the plaintiff already suffering from the effects of the first.

The applicant relied on a divergence of views in English law, particularly concerning the House of Lords decisions in *Baker v Willoughby* and *Jobling v The Associated Dairies Ltd*. These cases, the applicant submitted, presented an apparent conflict on how to approach such multi-tortfeasor scenarios. The applicant also referred to a separate view expressed by Windeyer J in *Faulkner v Keffalinos*. The applicant's core submission was that the assessment of damages in this case had not been conducted according to the proper legal principles, necessitating a review by the High Court.