Assessing damages when pre-existing conditions exist – is a change coming?

Assessing damages when a plaintiff has a pre-existing condition, or some other external cause contributes to their current condition, is complex. On one hand you take the injured person as you find them – the “eggshell skull argument”; on the other hand it could be argued that to compensate a person for injuries for which the defendant had no legal responsibility amounts to over compensation.

It is well established following Watts v Rake and Purkess v Crittenden that where a plaintiff has made out the prima facie case that their injuries have resulted from the defendant’s negligence, the onus shifts to the defendant to adduce evidence showing that the injuries were, on the balance of probabilities,  wholly or partly the result of a pre-existing condition, or that the injuries would have resulted in any event. If the defendant does not satisfy that evidentiary burden the plaintiff will be entitled recover the full extent of their loss. As a result lawyers and claims specialists can spend an inordinate amount of time attempting to disentangle the causes of a plaintiff’s incapacity.

However what happens then the effect of the pre-existing condition or external causes is indivisible from the injuries that the defendant’s negligence is said to have caused? It is in this scenario that there may be some movement.

At first instance, Justice Campbell in DC v State of NSW, determined that in such circumstances the principles in Seltsam v Ghalib should be adopted and overcompensation “could be avoided by applying a percentage discount on the damages which would otherwise have been awarded had the defendant’s negligence been the sole cause of the plaintiff’s harm“. His Honour stated that he would have adopted a 70% “across the board” discount to all heads of damage he would have awarded.

The NSW Court of Appeal recently handed down its judgment on the appeal from Justice Campbell’s decision. The text of the decision has recently been restricted from publication however I did have the opportunity to review the decision prior to its publication being withdrawn. Given that the text  of the decision is now restricted I will not outline the facts of the case in detail, and refer only to what has already been publicly reported, and limit this post to general principles relating to damage.

DC and TB brought proceedings in negligence alleging that the State of NSW and a case worker breached a duty of care to act reasonably in the performance of their statutory obligations. DC and TB argued, amongst other things, that those statutory obligations included reporting to the police allegations of sexual abuse. DC and TB alleged that they suffered ongoing sexual and physical abuse perpetrated by their step father despite their reports of the abuse to the Department of Community Services and the case worker. At first instance they were unsuccessful as a result of a certain factual finding. Whilst the liability elements of the appeal occupied the bulk of the judgment, the Court of Appeal did consider the assessment of damages  in circumstances were pre-existing conditions, or external causes, contributed to a plaintiffs’ loss yet the defendants had not satisfactorily disentangled the causes of the plaintiffs’ injuries.

Whilst the text of the judgment is currently restricted, the judgment is one that may be important to review if the restriction is lifted for the following reasons:

  • One Justice opined that Justice Campbell’s “across the board” discount approach to disentangling the causes of the plaintiff’s injuries was “at last contestable”.
  • The tension between the Watts v Rake and Purkess v Crittenden line of authority and the approach to apportioning damages considered in Malec v Hutton (in Malec the plaintiff’s loss was assessed by reference to the extent of the probability of a pre-existing condition affecting the plaintiff in the future) was again noted. One Justice considered that the tension could be reconciled by the Court making a greater than normal allowance for contingencies or vicissitudes despite the defendant being unable to discharge the evidentiary burden of disentangling the cause of a plaintiff’s injuries.
  • Obiter comments were made to the effect that while Justice Campbell’s apportionment of damages would not have been interfered with, the reasoning adopted by the appeal Judge may been somewhat different.
  • It seems that all Justices considered that there is room for debate as to how damages should be assessed once it is established that the plaintiff suffered from a pre-existing injury that was exacerbated or intensified a result of a defendant’s negligence.

When considering this issues consideration should also be given to the Queensland Supreme Court decision in McQuitty v Midgley – in that case the Court preferred the Malec v Hutton approach over the  Watts v Rake approach. Such an approach generally is more favourable to the defendants.

What is clear is that apportioning damages in circumstances where there are impact of the pre-existing conditions is not clear and there may well be further changes in this area. This is most definitely an area to watch.

If you wish to keep up to date with issues and developments relevant to professionals follow Julie Somerville, Principal at Meridian Lawyers on LinkedIn.

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