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Mullins, Gerard --- "Editorial: 'So Far as Money Can Do So'" [2023] PrecedentAULA 24; (2023) 176 Precedent 2

‘So far as money can do so’

By Gerard Mullins KC

Justice Windeyer observed in Skelton v Collins^[1] that the ‘one principle which is absolutely firm, and which must control all else, is that damages for the consequences of mere negligence are compensatory’. Harold Luntz observes that it is ‘obviously impossible to use money to restore to a condition of physical wholeness a person who has suffered grievous personal injury. Therefore, the restitutio principle in this context needs to be qualified by a phrase such as “so far as money can do so”.’^[2]

It may seem trite to say that a damages award in a personal injury claim is for once and for all. But a client has but one chance for compensation. Assessing damages for injured victims is a task many lawyers who practise in the field of tort law undertake every day, and yet a lawyer’s contribution to that compensatory process, both in the formulation of the claim and its negotiation, is critical to the outcome.

The nature of modern human interactions means that many of the cases that confront us for assessment of compensation involve complex financial and personal transactions and catastrophic loss and suffering, combined with a human being who is trying to come to terms with a dramatic change in their life circumstances.

Jurisdictional differences can make the assessment even more complex, particularly where the claim involves cross-border components. The subtle differences in the respective civil liability legislation enacted in each state and territory at the turn of this century complicates that assessment even further.

This edition of Precedent contains a range of articles that provide insightful analysis of various aspects of assessment of damages for personal injuries.

Jnana Gumbert’s examination of key aspects of damages awards for catastrophically injured plaintiffs articulates the essential elements of the assessment, with a particular focus on the evidence needed to support a claim for commercial care, aids and equipment.

Michael Lee provides a valuable and well-researched catalogue of the critical factors of an assessment of damages for economic loss that extends across the span of an injured person’s life, highlighting evidential aspects of that assessment that might differ from those that might be relevant to an assessment in the more recent past.

Jane Campbell examines the theoretical and practical challenges in ensuring the fruits of litigation for a catastrophically injured plaintiff are managed in an appropriate way and that the costs associated with the management of those funds are appropriately valued and recovered.

Amy Johnstone notes that Australian courts have not yet dealt with a claim for the cost of becoming a parent through surrogacy. She examines the recent decision of the Supreme Court of the UK in Whittington Hospital NHS Trust v XX,^[3] which provides useful guidance on how such a claim might be addressed in Australia.

Angela Sdrinis confronts the difficult issues that face claimants who, unable to achieve recovery from an institution, are obliged to look to their perpetrators for compensation. The problems associated with restraining, freezing and distributing assets are carefully examined, with useful recommendations for management of those claims so as to ensure maximum recovery.

George Newhouse and Veera Singh investigate claims of damages for mass data breaches, and Gemma Leigh-Dodds and Dr Lauren Meath examine climate litigation and establishing a novel duty of care, while Dipal Prasad examines thorny issues relating to costs agreements and complications associated with recovery when estimates are not updated.

New developments in the assessment of damages impact on our practice of law and the service of our clients every day. This edition of Precedent extends across a broad range of issues, and is essential reading for every practising lawyer.

Gerard Mullins KC practises in tort law. He specialises in catastrophic injury, medical negligence, aviation and human rights. EMAIL gerrymullins@qldbar.asn.au

^[1] [1966] HCA 14; (1966) 115 CLR 94, 128.

^[2] Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death, 5th ed, LexisNexis, Lane Cove, 2021, [1.1.6].

^[3] [2020] UKSC 14.