Court reduces Plaintiff's damages by 50% for non-work related condition
Often plaintiffs either have pre-existing health conditions or have suffered non-work related health conditions by the time of trial resulting in the defendant seeking a discount of damages to account for the effect of the non-work related condition. This is especially so in the case of psychiatric conditions which are often considered to be multi factorial in origin. In White v Hertz Australia Pty Ltd  QSC 82, Daubney J considered in detail, the evidentiary burden to be discharged by the defendant in order for such a discount to be applied.
The plaintiff was a car detailer who sustained a needlestick injury when removing rubbish from a car and then developed a psychiatric injury due largely to the fear he had contracted a blood borne illness. Three months after the injury, he was clear of having contracted such an illness but he continued to experience psychiatric symptoms which increased over time culminating in his admission as a psychiatric inpatient.
At trial, the defendant employer alleged the plaintiff’s work related psychiatric condition ceased after the blood test results were conveyed to the plaintiff and that after that time the psychiatric condition was maintained by other factors including:
The defendant therefore contended a discount of the damages should be made to reflect the contribution of the non-work related factors to the plaintiff’s loss and damage.
First, the plaintiff must establish that the defendant’s negligence caused the relevant injury. Here, the defendant conceded negligence in relation to the needlestick injury and the causal link between that injury and the psychiatric condition, albeit for a limited period. The evidential burden then falls on the defendant to establish that, had there been no negligence, the plaintiff would have suffered disability from the non-work related condition/s. If this is established, the court can then make a comparison between the plaintiff’s current position and the possible position, but for the negligence.
In considering the medical evidence, Daubney J found:
Having made those findings, Daubney J applied a 50% discount to the past and future economic loss awards to reflect the likelihood of the plaintiff suffering mental decompensation as a consequence of his pre-existing shoulder condition. He also applied a discount to future expenses by way of global allowance.
Although the defendant was unable to demonstrate that the entirety of the plaintiff’s ongoing disability related solely to the pre-existing shoulder condition, they were successful in obtaining a very substantial discount to the damages to reflect the effect of the shoulder condition.
In order to obtain a discount in these circumstances, a defendant must prove:
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