Tuohey v Freemasons Hospital

(2012) 37 VR 180; [2012] VSCA 80

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Damages
2. › Personal injury damages
3. › Economic loss
4. › Loss of earnings
5. › Statutory cap on weekly earnings
6. › Whether cap applies to 'without injury' earnings or to assessed loss
7. › Wrongs Act 1958 (Vic), s 28F(2)
1. Statutory Interpretation
2. › Purposive construction
3. › Literal meaning consistent with purpose
4. › Presumption against interference with common law rights
5. › Displacement of presumption by express words
6. › Interpretation of Legislation Act 1984 (Vic), s 35(a)
1. Statutory Interpretation
2. › Comparable provisions in other jurisdictions
3. › Use of interstate judicial decisions as guide to construction
4. › Motor Accidents Compensation Act 1999 (NSW), s 125
5. › Personal Injuries Proceedings Act 2002 (Qld), s 51

Quick Take

The statutory cap on earnings in s 28F(2) of the Wrongs Act 1958 (Vic) applies to the plaintiff's pre-injury ('without injury') gross weekly earnings — the first component in the common law assessment process — not to the final assessed loss. Where both a plaintiff's pre-injury and post-injury earnings exceed 3 times average weekly earnings, the plaintiff is not entitled to any damages for economic loss. This interpretation is consistent with the construction of comparable provisions in NSW (s 125 Motor Accidents Compensation Act 1999) and Queensland (s 51 Personal Injuries Proceedings Act 2002).