Tasmanian general damages trailing behind the mainland no longer!

In this decision the Tasmanian Supreme Court has taken a big step towards bringing awards for general damages into line with other Australian jurisdictions, changing the quantum landscape for Tasmanian CTP claims.

In issue

• The court’s considerations when awarding general damages
• The defendant’s liability for the plaintiff’s injuries if exacerbated by another incident
• The defendant’s liability for the psychiatric or psychological consequences of the plaintiff’s injuries

The background

In February 2018, the plaintiff was the front passenger in her husband’s car when they were rear ended by the defendant. As a result, the plaintiff suffered a whiplash injury and developed an Adjustment Disorder with Depressed Mood.

In May 2018, the plaintiff was again the front passenger in her husband’s car when he braked suddenly. There was no collision, but the incident exacerbated her whiplash injury which was recovering well prior to this ‘subsequent incident’.

The decision at trial

General Damages

In considering the application of section 28 of the Civil Liability Act 2002 (TAS), (the Act) Chief Justice Blow found that it did not preclude him from ‘giving weight to current general ideas of fairness and moderation as reflected in awards by courts in other Australian jurisdictions¹’. Having extensively considered the evidence before him, he found the plaintiff to have been disabled to a significant extent for over four years with no possibility of a full recovery. He was critical that awards for non-economic loss in Tasmania have been significantly lower than ‘most, if not all mainland jurisdictions²’ and declared ‘there is no reason why that should any longer be so³’ citing Mercer v Allianz Australia Insurance ltd (No 2) [2013] TASSC 35 at [120] and ZAB v ZWM [2021] TASSC 64 at [122]. His Honour awarded $100,000 in general damages to the plaintiff.

Subsequent Incident

Chief Justice blow considered the issue of whether the subsequent incident exacerbated the plaintiff’s injuries and the defendant’s liability for that exacerbation. His Honour found that because the damage sustained in the second incident was greater due to the aggravation of the earlier injury, the defendant ought be responsible (relying on the principles referred to in State Government Insurance Commission (Western Australia) v Oakley (1990) Aust Tort Reports 81-003).

Psychiatric or Psychological Consequences

The defendant contended that it should not be held liable for any psychiatric or psychological consequences of the plaintiff’s injuries. It argued firstly that section 13(1)(b) (which operates to limit the defendant’s scope of liability) excluded the mental harm component of the plaintiff’s claim because it was not appropriate for the defendant to be held liable for the mental harm experienced by the plaintiff. Secondly, it argued that section 34 (which requires mental harm to have been a foreseeable consequence and a recognised psychiatric illness) applied to the facts at hand. Consequently, the defendant had no duty to the plaintiff to not cause the plaintiff mental harm.

His Honour disagreed with the defendant’s interpretations of the Act and instead found:

• Section 13(1)(b) of the Act requires a value judgement to be made on what is appropriate⁴ and in this case it was appropriate to impose liability for damages in respect of the plaintiff’s mental harm on the defendant due to his negligence. Applying the case of Wallace v Kam [2013] 250 CLR 375 where the High Court considered the identical NSW provision, His Honour opined that it is very common for patients who have suffered physical injuries to go on to develop psychiatric or psychological problems and the courts have routinely awarded damages for the mental consequences of physical injury.
• On section 34 of the Act, His Honour noted that this section requires consideration of various circumstances. He found that it was foreseeable to a reasonable person that causing a collision could result in mental harm. Further, there was a clear link between the mental harm and the physical injuries caused by the accident and on the evidence provided, the plaintiff suffered a recognised psychiatric illness.⁵ Therefore, section 34 of the Act did not assist the defendant.

Implications for you

This decision confirms that awards for general damages in Tasmanian claims are on the upward trajectory. When reserving Tasmanian claims, attention ought to be placed on the assessment of general damages to ensure it allows for the projected increase in awards. Further, this decision serves as a reminder as to the impact on mental harm in personal injury claims, noting His Honour emphasised that mental harm is a foreseeable consequence of a physical injury.

Scattergood v Commonwealth [2022] TASSC 21