General Principles Appeals on Damages – Part 6

by Craig Hobbs

POTTS V FROST – FULL COURT – CONTINGENCIES

 

It is trite to say that when assessing future components of a claim it is necessary to give consideration to whether any adjustment should be made to take account of contingencies.  This often involves discounting to take account of contingent circumstances that may reduce injury related future loss ultimately sustained by a plaintiff. However, components of a claim should not necessarily be discounted to take account of contingencies.  It has been made clear in Ritchie v Victorian Railways Commissioner [1] that the Court “… must … contemplate all … things either to enhance or mitigate damages…” as considered appropriate (emphasis added). Further, in Bresatz v Przibilla (1962) 108 CLR 541, Windeyer J. at pages 543-544, stated :-

“It is a mistake to suppose that it necessarily involves a ‘scaling down’.  What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. …  But this ought not to be done by ignoring the individual case and making some arbitrary subtraction.  …  Moreover, the generalization that there must be a ‘scaling down’ for contingencies seems mistaken.   All ‘contingencies’ are not adverse; all ‘vicissitudes’ are not harmful.   …  Why count the buffets and ignore the rewards of fortune?   Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad.”

 

 

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[1] (1989) 25 VLR 272 (FC) at 276.