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District Court 23 May 2014

Rossiter v De Marco

[2014] NSWDC 384

Other
CIVIL TORTS MOTOR ACCIDENT CLAIM CLAIM FOR PURE MENTAL HARM ASSESSMENT OF DAMAGES ONLY MOVE THERAPEUTIC

Citation: Rossiter v De Marco [2014] NSWDC 384
Court: District Court of New South Wales
Date: 23 May 2014
Judge: Neilson DCJ

Background

The plaintiff was in a close, committed relationship with a woman who died after a motorcycle collision with a vehicle driven by the defendant. The defendant admitted breaching his duty of care to the deceased and did not contest that he also owed a duty of care to the plaintiff, nor that the plaintiff suffered a recognised psychiatric injury as a result of the death.

The plaintiff had a long career in the hospitality industry and had recently secured a promotion to a Business Development Executive role with a major beverage company, learning of her success only after her partner's death. She and her partner had planned for the partner to bear a child, with the plaintiff taking on full-time work so her partner could reduce to part-time. That plan was extinguished by the death.

Following the death, the plaintiff eventually relocated from Wagga Wagga to Tuross Heads, a move described as therapeutically beneficial. The hearing was confined to the assessment of damages only.

  • Whether the plaintiff's psychiatric condition (diagnosed as either PTSD or Adjustment Disorder) satisfied the threshold for a "pure mental harm" claim under the Civil Liability Act 2002
  • The correct assessment of past and future economic loss, including the impact of the plaintiff's career trajectory and the planned family arrangement
  • Whether the plaintiff's relocation from Wagga Wagga to Tuross Heads affected her entitlement to economic loss damages
  • The appropriate calculation of damages for the loss of a company motor vehicle benefit
  • Costs consequences following a formal offer of compromise

Decision

The court accepted that the plaintiff suffered a recognised psychiatric injury beyond normal grief, consistent with either PTSD or Adjustment Disorder. Both the plaintiff's own expert and the defendant's expert, Dr Robert Lewin, confirmed this threshold was met. The plaintiff also qualified as the deceased's "former partner" within the meaning of s 30(5)(b) of the Civil Liability Act 2002, satisfying the relational requirement for the claim.

On economic loss, the court accepted that the plaintiff would have moved to full-time employment while her partner reduced to part-time to bear and raise a child. This arrangement meant the plaintiff's pre-injury earning trajectory was properly assessed at full-time hours in a higher-paid role. The psychiatric injury disrupted that trajectory and the court assessed past and future loss of earning capacity accordingly.

The relocation to Tuross Heads was found to be therapeutically justified, and the court held this did not disentitle the plaintiff from recovering full economic loss. Although the move affected her practical ability to obtain equivalent hospitality-sector work, the court treated the move as a reasonable response to her condition rather than a voluntary act that broke the chain of causation.

The court applied a 20% discount for future economic loss and assessed damages across all heads, including a claim for the lost benefit of a company motor vehicle. A total verdict of $327,520 was entered for the plaintiff.

Orders Made

  • Verdict and judgment for the plaintiff against the defendant in the sum of $327,520
  • The defendant to pay the plaintiff's costs on the ordinary basis up to and including 22 January 2014
  • The defendant to pay the plaintiff's costs on an indemnity basis from 23 January 2014, following the plaintiff's offer of compromise of $140,000 plus costs made on 22 January 2014, which the final award substantially exceeded

Key Takeaways

  • The District Court confirmed that a plaintiff in a same-sex de facto relationship qualifies as a "former partner" under s 30(5)(b) of the Civil Liability Act 2002, satisfying the threshold for a pure mental harm claim arising from a partner's death.
  • A psychiatric diagnosis of Adjustment Disorder, as distinct from normal grief, can constitute "pure mental harm" sufficient to ground a claim in negligence under the Civil Liability Act 2002.
  • Where a plaintiff's relocation following psychiatric injury is found to be therapeutically motivated, that move does not necessarily reduce the plaintiff's entitlement to economic loss damages attributable to the injury.
  • Evidence of a couple's concrete plans for one partner to bear a child, supported by medical records and credible testimony, can inform the court's assessment of the plaintiff's intended working arrangements and thus their pre-injury earning trajectory.
  • A plaintiff who makes a formal offer of compromise that is ultimately exceeded by the judgment will ordinarily be entitled to indemnity costs from the day after the offer was made, as occurred here.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), including s 30(5)(b)
- Workers Compensation Act 1987 (NSW)

Cases:
- Plato Films Limited v Speidel [1961] AC 1090