K'Mart Australia Ltd v McCann

[2004] NSWCA 283

NSW Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Personal injuries
3. › Assessment of damages
4. › Economic loss
5. › Supervening unrelated event
6. › Whether unrelated supervening illness must be taken into account in assessing economic loss
7. › Whether defendant liable for economic loss during period of incapacity caused by unrelated event
1. Damages
2. › Personal injuries
3. › Assessment of damages
4. › Future economic loss
5. › Buffer or cushion
6. › Whether future economic loss should be assessed as buffer where impact on earning capacity difficult to determine
7. › Civil Liability Act 2002 (NSW), s 13
1. Damages
2. › Personal injuries
3. › Assessment of damages
4. › Future economic loss
5. › Statutory requirements
6. › Whether trial judge complied with s 13 of Civil Liability Act 2002 (NSW)
7. › Civil Liability Act 2002 (NSW), s 13

Quick Take

Where a plaintiff suffers a supervening illness or injury before trial that is unrelated to the tortious injury and which independently extinguishes earning capacity, the defendant is not liable for economic loss during the period of incapacity caused by the supervening event. Future economic loss should be assessed as a buffer where the impact of the injury on earning capacity is difficult to determine, and this approach is consistent with s 13 of the Civil Liability Act 2002 (NSW).