State of New South Wales v Burton

The appeal before the Court of Appeal of New South Wales concerned the assessment of damages awarded to the plaintiff, Mr. Burton, against the State of New South Wales. The dispute centred on whether the Court of Appeal should itself assess the plaintiff's damages or remit the matter to a lower court, particularly given the case had already been remitted twice previously. The overarching consideration was the achievement of a just, quick, and cheap resolution of the real issues in the proceedings, as mandated by section 56(1) and (2) of the *Civil Procedure Act 2005* (NSW).

The legal issues before the Court of Appeal included the assessment of damages for the loss of a chance, specifically concerning the plaintiff's post-traumatic stress disorder. This involved determining the burden of proof in establishing the likelihood of a "better outcome" had appropriate intervention and treatment been provided following the initial trauma. The court was required to consider the aetiology of the plaintiff's condition, the likelihood of him revealing the intensity of his feelings and responses, the nature of the treatment that would have been offered, his chance of accepting such treatment, and the likely effect of that treatment. Crucially, the court had to assess how any such better outcome would have impacted the plaintiff's financial loss.

The Court of Appeal reasoned that the plaintiff's harm resulted from the initial exposure to trauma, compounded by the defendant's negligence in failing to ameliorate the condition through appropriate care and treatment. The court engaged in an assessment of the probabilities regarding the plaintiff's potential for a better outcome, considering the uncertainty surrounding the aetiology of his condition. Applying the principles of assessing damages for loss of a chance, the court determined the degree of likelihood of a better outcome and its potential impact on financial loss.

The appeal was allowed, and the orders made in the District Court were set aside. In their place, judgment was entered for the plaintiff in the sum of $80,000, with that judgment to have effect from 7 June 2007.