General damages on the rise?

General damages for pain, suffering, and loss of amenity of life are the backbone of any claim for personal injuries. Such damages do not compensate for economic loss but rather, along with aggravated damages, compensate a plaintiff for intangible losses.

In Mercer v Allianz (No. 2) [2013] TASSC 35 (a case in which this firm acted for the Plaintiff), Chief Justice Blow accepted at [120] the disparity between awards of damages for non-economic loss in Tasmania by reference to mainland jurisdictions, particularly New South Wales. Blow CJ said, “[t]here is no reason why that should any longer be so, given the mobility of the Australian population, as this case very well illustrates”.

Despite his Honour’s observations in Mercer, it is arguable that in the ensuing eight years Tasmania has still not accepted that “general ideas of fairness and moderation” reconcile awards of general damages in Tasmania with mainland jurisdictions.

Yesterday, the Chief Justice delivered his judgment in ZAB v ZWM [2021] TASSC 64, where at [122] his Honour repeated comments in Mercer and went on to say, “[t]he appropriate course is to give weight to current general ideas of fairness and moderation on the part of Australian courts generally, not just this Court”.

ZAB involved the persistent sexual abuse of a young man by his father. The Plaintiff left Tasmania to complete his university studies before working on the mainland and in Europe. The evidence supported a conclusion that the Plaintiff’s successful career trajectory as a lawyer was destroyed by the Defendant’s conduct. When confronted by the Plaintiff, the Defendant engaged in a sustained course of conduct to harass and intimidate the Plaintiff. Ideas of fairness and moderation clearly demanded a significant award of general and aggravated damages.

The Court awarded the Plaintiff $300,000 damages for non-economic loss, comprising aggravated and general damages, in a total judgment exceeding $5.3M.

Alex Kendall

Senior Associate

Phillips Taglieri