The Nominal Defendant v Aychahawchar

The Nominal Defendant appealed to the Court of Appeal of New South Wales against a District Court judgment awarding damages to the respondent, Aychahawchar, for injuries sustained in a motor accident. The appeal concerned challenges to the awards made for non-economic loss and past and future economic loss, with a particular focus on whether the respondent had failed to mitigate their loss and how any such failure should be reflected in the damages awarded.

The central legal issues before the Court of Appeal were the proper interpretation and application of sections 126 and 136 of the *Motor Accidents Compensation Act 1999* (NSW) in relation to the assessment of damages. Specifically, the court had to determine the burden of proof for establishing a failure to mitigate loss and the nature of the evidence required to discharge that burden, including whether proof of what earnings would have been had the loss been mitigated was necessary.

The Court of Appeal found that the District Court had erred in its assessment of damages. The court held that the burden of proving a failure to mitigate loss rested on the appellant, The Nominal Defendant. It was not sufficient for the appellant to merely suggest that the respondent could have earned more; rather, the appellant was required to provide positive evidence demonstrating what the respondent's earnings would have been had they taken steps to mitigate their loss. The court concluded that the appellant had failed to discharge this burden. Consequently, the appeal was allowed, the District Court's judgment was set aside, and judgment was entered for the respondent in the sum of $303,850, with the respondent to pay 90% of the appellant's costs of the appeal.