The recent Court of Appeal decision in Samco Pty Limited v Wurth [2015] NSWCA 117 considers the application of section 5D of the Civil Liability Act in establishing causation between a prior incident and a subsequent injury, and the impact of this on assessing of various heads of damages.


In February 2011, the respondent (the plaintiff) caught her right foot in an unguarded drainway in the carpark of the hotel owned by the appellant. The plaintiff fell, breaking a bone in and bruising her right foot. Some months after the injury, the plaintiff also complained of pain in her left knee.


The plaintiff commenced proceedings in the District Court against the appellant claiming damages for injuries to her foot and her knee. Levy SC DCJ found for the plaintiff and awarded her over $456,500 in damages.


Basten JA (with Meagher JA and Adamson JA agreeing).

The issues for determination on appeal were whether the meniscal tear in the left knee was caused by the accident, and whether levels of damages that were awarded were appropriate. The Court allowed the appeal and held that the plaintiff was entitled to substantially reduced damages of $73,800.

The Court concluded that the trial judge erred in finding the knee injury resulted from the accident. The Court observed that the plaintiff had not complained about any changes in her left knee from the time of the accident until at least late September 2011, when she reported shooting pains during a gym session. The Court further noted that there was no medical evidence to satisfactorily explain a possible mechanism by which the knee injury had occurred, in the course of the accident.

Flowing on from this, it was held on appeal that the assessment of non-economic loss should be reduced from 28% to 25% of a most extreme case. The Court noted that this was "erring on the side of generosity to the plaintiff".

Given what was referred to as the "purely speculative nature of the exercise", the award for future economic loss was also reduced from a buffer of $130,000 to $30,000. The Court reasoned the "simple fact" was, at the time of the trial and for some two years following the accident, the plaintiff had been in full-time employment in same the job she had held prior to the accident. Further, none of the medical practitioners suggested deterioration of the condition in her foot.

With respect to past domestic assistance, the Court found that the plaintiff failed to establish the requisite 6 hours of assistance over a period of 6 months in relation to the past and future domestic assistance, to a significant extent due to the inconclusiveness of the plaintiff's evidence. Basten JA explained at [83]:

"The judge was entitled to put little, if any, weight upon hourly calculations provided by medical practitioners. [...] The real value of medical evidence in this area is in an assessment of the true extent of any physical or mental disability suffered by the plaintiff. That is because the key question is not what assistance the plaintiff has been provided by others, but the reasonable need for the services to be provided".

It was held that no award for future domestic assistance at commercial rates should be made as the evidence was unable to adequately establish the plaintiff's husband would not continue to provide such assistance in the future.


The Court's assessment reveals the following:

  1. A finding of causal connection will turn on the facts of the case, and will need to be supported by strong medical evidence so as to establish a possible mechanism by which a subsequent injury occurred in the course of the accident in question.
  2. In assessing each award of damages, the Court found it necessary to put the entirety of the evidence into a broader context so as to establish whether or not the statutory thresholds were met, particularly with respect to past and future gratuitous assistance. Further, the role of medical practitioners in providing evidence was said to be in establishing the "reasonable need for the [domestic assistance] services to be provided", rather than providing assessments of the number of hours of assistance required.

This article was co-written by Michael Cooper, Principal, Jemima Griffith, Lawyer and Elizabeth Berwick, Law Clerk.