What happened

Following the 2009 fatal accident in NSW, the claimant’s depression affected household tasks and care for her children. Relatives helped while she continued working under considerable strain. After successive medical assessments and reviews, the operative impairment assessment excluded non-economic loss from the damages being assessed.

The issues

The issues included mitigation, assistance needed by the claimant herself and her lost capacity to care for her children. The court also considered future earnings risk despite continued employment and whether to order a further medical assessment.

The court's decision

The court rejected the mitigation contention after considering the insurer’s refusal to fund recommended treatment and the nature of the illness. The assistance exceeded ordinary family give-and-take, and future treatment and earning-capacity losses were established. It declined further medical assessment and entered judgment for $291,600, with costs separately ordered.

Understanding the figures

The $291,600 judgment included $36,400 for past assistance to the claimant, $105,625 for lost capacity to care for her children, $37,000 for future paid assistance and $80,675 for future economic loss. The latter comprised $5,675 for time away during treatment and a $75,000 allowance for future risk. No non-economic loss was awarded, and costs were separate.

What this case shows

Care needed by an injured person and the loss of that person’s ability to care for family members are distinct losses. Continued employment and failure to meet the non-economic-loss impairment threshold did not eliminate other losses established by the evidence.

Why another case may differ

This was a historical assessment under the Motor Accidents Compensation Act 1999 and relevant Civil Liability Act provisions for a 2009 accident. It assessed quantum with psychiatric illness and liability not in dispute, rather than establishing an entitlement from bereavement alone. The mitigation finding depended on the illness and the insurer’s response in this case.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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