Date: Thu, 26 Aug 2004 10:28:01 -0400

From: Jason Neyers

Subject: Causation problem

I post this on behalf of Harold Luntz:

I invite members to express their opinion of DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 (18 May 2004), the facts of which fall somewhere between Baker v Willoughby and Jobling v Associated Dairies.

Those facts were that the plaintiff, an unskilled miner earning a comparatively high wage, suffered at work a permanent injury to his lower back. For North American colleagues it should be explained that under Australian workers' compensation legislation, workers have traditionally had available to them the right to sue their employers alternatively at common law. Although this right has been abrogated or reduced in recent years, it was available to the worker in this case provided his injury took him over a threshold and apparently fault on the part of the employer was not disputed. As a result of the injury the plaintiff was unable to continue the heavy work required of a miner and some five months later he took employment with a farm machinery company at a lower wage. Then, four years later, while driving on his way home from his then job, he collided with a cow and suffered serious injuries to his neck. This left him virtually unemployable.

There is no dispute that for the period from the mining accident until the car accident the plaintiff was entitled to damages for the difference between his earning capacity as a miner and as an employee of the farm machinery company. It is also not disputed that the plaintiff was not entitled to damages from his original employer for the total loss of his earning capacity after the motor accident, even though but for the original employer's negligence he would not have been at the place where he was when the motor accident occurred.

The issue on which the appeal turned is whether the motor accident effectively terminated the claim for damages for reduced earning capacity. The trial judge, Jack Goldring DCJ, a former academic well known to many Australian law teachers, held that it did not and awarded substantial damages for the period between the accident and the trial and for the future. This was set aside by the Court of Appeal, which awarded a comparatively small sum "to allow for any loss of earning capacity in the mining accident which would not have been lost in the car accident".

What do members think of denying a plaintiff damages for loss of earning capacity that would have been continued into the future if not for another (non-tortious) accident that overwhelms that initial loss of capacity?

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

Home address:
191 Amess St
North Carlton
Vic 3054
AUSTRALIA

Phone:
Home: +61 3 9387 4662
Law School: +61 3 8344 6187

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