Nominal Defendant v Gardikiotis [1996] HCA 53

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ Nominal Defendant v Gardikiotis [1996] HCA 53

ORDER

1. Appeal allowed.

2. Set aside par 4 of the order of the New South Wales Court of Appeal.

3. Stand the matter over to enable the parties to file by consent orders giving effect to the judgment of this Court.

4. In default of the filing of consent orders within twenty-eight days, remit the matter to the New South Wales Court of Appeal to proceed therein in accordance with the judgment of this Court.

5. The appellant pay the respondent's costs of this appeal.

Cur adv vult

The following written judgments were delivered:—

24 April 1996 Brennan CJ, Dawson, Toohey and Gaudron JJ.

The facts and the questions involved in this appeal are set out in the judgment of Gummow J. We agree with his Honour, substantially for the reasons he gives, that the respondent should not have been awarded damages for management of the fund constituted by the verdict which she obtained. We note that no claim was made that, as a result of her physical disabilities, the respondent will incur additional expense in managing her financial affairs. And as at present advised, we are of the view that any difficulties the respondent will experience in that regard are compensated for by the award of general damages.

As with the question whether an accident was the result of a defendant's negligence, the question whether a need results from an accident is essentially a question of common sense: it is not a question to be answered by application of the "but for" test [1] . True it is that, but for the accident, the respondent would not have a verdict to invest and, thus, would not need assistance in its management. But it is contrary to common sense to speak of the accident causing a need for assistance in managing the fund constituted by her verdict moneys in circumstances where her intellectual abilities are not in any way impaired. It would be otherwise in the case of a plaintiff who is intellectually impaired as a result of a defendant's negligence or by reason of some pre-existing disability.