Bi (Contracting) Pty Ltd v Eileen Sylvia Strikwerda & Anor

[2005] NSWCA 288

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Damages
2. › Assessment of damages
3. › Dependant's action
4. › Lord Campbell's Act
5. › Offset of pecuniary benefits
6. › Benefits passing to dependant as beneficiary under intestacy
7. › Estate swollen by proceeds of survival action
8. › Whether evidentiary onus on plaintiff or defendant to establish estate's capacity to pay
9. › Wrongs Act 1936 (SA)
10. › Survival of Causes of Action Act 1940 (SA)
1. Evidence
2. › Onus of proof
3. › Evidentiary burden distinguished from persuasive burden
4. › Location of evidentiary onus
5. › Blatch v Archer principle
6. › Evidence peculiarly within knowledge of one party
1. Practice and Procedure
2. › Dust Diseases Tribunal
3. › Appeal limited to points of law
4. › Reconsideration of verdict
5. › Dust Diseases Tribunal Act 1989 (NSW), ss 13(6), 32

Quick Take

In a dependant's action under Lord Campbell's Act provisions, the evidentiary onus of establishing the value of the deceased's estate for the purpose of offsetting benefits lies with the plaintiff/dependant, not the defendant, particularly where the estate information is peculiarly within the plaintiff's knowledge. The offset of estate benefits against a dependant's damages is a matter of computation of damages, not mitigation.