Plaintiff v Defendant

Supreme Court of Victoria|2011-12-05|Before: J FORREST J

DAMAGES - Tort - Damage to property - Repairs undertaken by plaintiff and volunteers - Whether plaintiff entitled to damages for own labour - Whether plaintiff entitled to damages for labour of volunteers - Held immaterial whether plaintiff carried out work himself or with volunteer labour

DAMAGES - Measure of damages - Damages to be measured by reference to reasonable commercial costs of repair

DAMAGES - Assessment of damages - Principles of 'betterment' in damages - evidential burden of proof lies on defendant - Plaintiff entitled to complete cost of repairs made necessary by tortious act - Plaintiff needs to give credit where extra improvements added

DAMAGES - Administration and inconvenience - Claims for non-economic loss - Part VBA of Wrongs Act 1958 (Vic) - Distinction between physical inconvenience and mental distress - Distinction between mere inconvenience and annoyance and physical inconvenience - Damages may be recovered for substantial inconvenience caused by tortious act - Insufficient evidence to establish claim for physical inconvenience.

1 On the 24th day of the trial (7 October 2011), the question of Powercor's liability to Mr Thomas and the group members was resolved by agreement between the parties,[1] subject to the approval of the compromise by the Court.[2] Approval of the settlement of the liability issue has now been determined by Beach J.

2 After the parties announced resolution of the liability issue, eleven questions relevant to damages were formulated by the parties for my determination. It was clear from this list that a number of the damages issues ventilated at the trial had been resolved, and several of the components of Mr Thomas' claim for damages agreed.[3]

3 The first six questions raise a point of legal principle, namely:

(a) can Mr Thomas claim for the commercial cost of the reinstatement and repairs to the farm infrastructure when such work was carried out by himself with some assistance from volunteers?; and

4 The next three questions, although relating to fairly mundane items, raise questions of betterment and onus of proof. The final two questions, relating to the claim for damages for "administration and inconvenience", raise another point of principle - whether such a claim is still available in this State.

5 I heard submissions as to the assessment of Mr Thomas' damages on 12 October 2011. I thought this was an appropriate course; the parties had, during the course of the trial, indicated that, amongst other things, the question of the valuation of the provision of voluntary labour was a real sticking point between them. Even if Beach J had refused to approve the compromise there was real utility in resolving this point. It would still have been necessary if I had resumed the trial and decided liability in favour of Mr Thomas and the group members. Alternatively, in the event that I decided the case in favour of Powercor, it may have been helpful if there was an appeal against my decision.

6 I accept that it is unusual for one judicial officer to hear argument on the question of quantum whilst another judge considers approval of the compromise of the liability issue. However, the provisions of the Civil Procedure Act 2010 (Vic)[4] require a court to be proactive in facilitating the resolution of issues - particularly in a group proceeding where many claimants will be awaiting the guidance of the Court.

7 Section 9 of the CPA makes it clear that a court is required to have regard to not only the public interest in the early settlement of disputes but also the efficient conduct of the business of the court and the efficient use of judicial administrative resources. I was satisfied by what I was told by counsel that each of these aims have been achieved by hearing argument on Mr Thomas' claim for damages prior to approval of the compromise.

8 In Johnson Tiles Pty Ltd & Anor v Esso Australia Pty Ltd & Ors,[5] Gillard J said as follows:

In my opinion, it is important that the Court conducts group proceeding litigation in a practical manner and ensures that as many questions of law and fact having a degree of commonality are decided. Once the group proceeding is completed and if an individual claim is to proceed, the individual litigant has the benefit of findings of law or fact to assist him in obtaining relief. It follows that a group proceeding is not concerned with the complete cause of action of a claimant, in the sense that all elements of the cause of action and issues raised are determined in the proceeding. The Court considers and determines the common questions of law and fact.[6]

9 With this guidance and after hearing submissions from the parties prior to the commencement of the trial, I formulated the relevant questions as to damages as follows:

(h) What are the appropriate principles to be applied in determining Mr Thomas' and the group members' damages in relation to:

(i) the loss of garden, trees and shrubs;

(ii) the loss of farm trees; and

(iii) loss consequential upon damage to his property.

(i) What loss or damage did Mr Thomas sustain as a result of:

(i) breach of duty by Powercor;

(ii) breach of statutory duty by Powercor; and

(iii) interference with his enjoyment of his property.

10 As a result of the settlement and the form of the additional questions, question (h)(i) and (ii) do not require adjudication. However, questions (h)(iii) and (i) remain alive. The additional questions read as follows:

What is the appropriate method of assessment of damages in respect of items such as loss of fencing, sheds and damage to stockyards?
If repair or rectification of the damaged item has been or is to be undertaken by the Plaintiff's labour, is the Plaintiff entitled to damages for the labour component of that item?

3. If yes to 2, are the damages to be measured by reference to:

(a) the value of the work done if it were to be purchased commercially;

(b) the hours that the Plaintiff spent or is to spend on such work; or

If repair or rectification of the damaged item has been or is to be undertaken by the labours of persons other than the Plaintiff, without charges to the Plaintiff but for the intended benefit of the Plaintiff, is the Plaintiff entitled to damages in respect of that labour component?

5. If yes to 4, are the damages to be measured by reference to:

(a) the value of the work done if it were to be purchased commercially;

(b) the hours that the volunteer(s) spent or are to spend in such work; or

What is the quantum of the Plaintiff's claim for the labour component of fencing, it being agreed that the material cost $4,591 per km?
What is the quantum of the Plaintiff's claim for the damage to his stock yards?
What is the quantum of the Plaintiff's claim for his farm shed?
What is the quantum of the Plaintiff's claim for the contents of his farm shed?
Is the Plaintiff entitled to compensation for losses described as "administration and inconvenience"?
If the answer to question 10 is yes, what is the quantum of the Plaintiff's claim under the head of damage?

11 At the trial, evidence as to quantum was given by Mr Thomas. Four expert witnesses, Messrs Aberdeen, McGuckian, Ms Stafford (on behalf of Mr Thomas) and Mr Hartley (on behalf of Powercor) gave concurrent evidence on the quantum issues.

12 Mr Thomas' farm ("the farm") is comprised of 152.57 hectares (or 377 acres) and is located at 354 West Road Drung,[7] approximately 6km south east of the Horsham township.

13 West Road runs north-south and the farm is located to the east of West Road. The aerial photograph below shows the general layout of Mr Thomas' house and the closer outbuildings prior to the fire.

14 The house, which fortunately was saved from any major damage in the fire, is constructed of weatherboard. There are a number of sheds and outbuildings situated relatively close to the house; in particular, a set of cattle yards, a wool shed, a garage and other utility sheds. The balance of the property is divided into paddocks used for cropping or grazing.

15 In the main Mr Thomas ran sheep and grew crops on the farm. However, his farming enterprise was not confined to West Road; he also owned a property at Goroke and in conjunction with Mr Graham Herd, he ran cattle on other properties (including the farm, the Goroke property and Mr Herd's property at Lower Norton)[8] around the district which he leased or rented depending upon the stock he held and the season.[9]

16 At the time of the fire the farm was running about 260 ewes, 200 lambs and 10 cows and calves.[10] A significant part of the property had been cropped and cut for silage in the spring of 2008.

17 At lunchtime on Black Saturday, Mr Alan Peterson was at home on his farm on Remlaw Road, Vectis, approximately 6km west of the Horsham township. The power supply to his house went off. Shortly after, he left his house to walk to a nearby shed to obtain a generator to provide alternative supply. The wind was ferocious. As Mr Peterson walked towards the shed, he observed blue smoke at the base of the number 15 power pole (located in an adjacent paddock) and noted that the conductor (the wire) was not sitting on the insulator on top of the pole, but was hanging on to the ground.[11]

18 Within a minute, Mr Peterson observed flames,[12] with the fire travelling in a south easterly direction, more to the south than the east.[13]

19 Two Powercor employees (Messrs Barber and Pilmore) were the first to arrive at the Peterson farm. By the time the two linesmen reached the pole the fire had travelled rapidly south and was approaching the Wimmera Road.[14]

20 Mr Peterson concluded, in effect on the spot, that the conductor had come into contact with the ground causing a short and igniting the vegetation which then progressed at a rapid rate in a southerly direction.[15]

21 Mr Warren Knop, a compliance officer (infrastructure) with Energy Safe Victoria was instructed to investigate the cause of the fire. He did so on 19 February 2009, accompanied by Mr Gregurke, a Powercor employee.

... that the whole of the old pole cap pin and insulator (pole top assembly) had become dislodged from the pole during a strong wind event when the three securing coach bolts are suspected of vibrating loose, allowing the pole top assembly with the SWER conductor attached to fall to the ground.

It is not known for how long a period the three securing coach screws had been loose or missing prior to the wind event which caused the pole top assembly and conductor to become dislodged from the pole.[16]

23 In the Country Fire Authority report into the cause of the fire, the following conclusion was reached:

The probable cause of the fire was a 12,700 vault single wire earth return line, the insulator and pole cap detached from pole 15. Senior maintenance and planner Paul Gerdtz of Citipower and Powercore [sic][17] said that it appeared that the line either hit the ground/stubble, localised heating or shorting out occurred.[18]

24 An investigation was also carried out for Powercor by Mr Donald Bainbridge, which resulted in the compilation of a report in March 2009.[19] He attended the scene on Sunday 8 February 2009. He concluded as follows:

The pole top dislodged from the pole and fell to earth causing arcing which started a fire.

One coach screw holding the pole top assembly onto the pole appears to be missing for some time.

The second coach screw has been in place until relatively recently.

The third coach screw remained until the pole top started to move off the pole. It was levered out by the pole cap as it started to come off the pole during the strong wind.

25 The wind, which was a strong north-westerly, drove the fire from the Peterson property in a south-easterly direction, across the paddock and on to other private farm and residential land. The fire then burned for approximately eight kilometres in a south-easterly direction and then changed direction and burned in a north-easterly direction for approximately seven kilometres before being brought under control.

26 The fire burnt out 2,346 hectares.[20] It destroyed 13 houses, one of which was unoccupied; two commercial premises, including Ryan's Removals and the Horsham Golf Club and much of its course; 31 sheds; 47 other outbuildings; 160 kilometres of fencing; 54 sheep; 226 other stock, including pets and poultry; various pieces of farm machinery and one car.[21]

27 The fire burnt out about 100 hectares of grazing and cropping land and killed 40 sheep on the farm.[22] The shearing shed, cattle yards, garage/farm shed and many of the internal and external fences were damaged or destroyed. It was agreed between Mr Thomas and Powercor that 5,580 metres of fencing on the farm was destroyed.[23]

The primary issue - On what basis is Mr Thomas' damages for reinstatement of the farm to be assessed given that much of the work was carried out by himself and volunteers (Questions 1-5)

28 Mr Thomas says that as a consequence of the fire he has sustained a loss in the form of destruction or damage to the fencing, sheds and stockyards. He also says that there is evidence establishing the reasonable cost of repairs to or replacement of those items. This is where, he contends, the Court's inquiry should cease. It is not necessary for the Court to examine how or in what form those repairs will be carried out - or by whom and at what cost - as long as Mr Thomas proves the nature of the loss and its quantification.

29 Powercor says that Mr Thomas is not entitled to be compensated for his own efforts, or those of others, in repairing and reinstating the fencing and other items unless he can establish that the carrying out of such work caused him some discrete financial loss - such as an inability to perform other work whilst repairing the fences. Subject to this exception, it contends that the only basis upon which an award of damages can be made is if Mr Thomas has incurred the expense or it can be concluded that he would incur such an expense. Insofar as there is any claim for the voluntary assistance of friends and neighbours, Powercor contends that there is no warrant to extend the principles from cases such as Griffiths v Kerkemeyer[24] and Van Gervan v Fenton[25] (personal injury cases) to a case involving damage to property.

30 It is necessary to set out in a little detail the evidence as to the actual works carried out (particularly that of the fencing repairs and replacement of the fencing in the reinstatement of the damaged infrastructure of the farm) and the commercial cost of that exercise.

31 The farm was divided into approximately a dozen paddocks with both timber post and steel post fences. Mr Thomas estimated that about 75% to 80% of the fences (both boundary and internal) were destroyed or damaged.[26] Mr Thomas, with assistance from friends, carried out the fencing repairs over the year after the fire.[27] For instance, some of the repair work on the fences was carried out by Mr Brennan, a man in his early 70's who worked for five weeks commencing the day after the fire. He assisted in the removal of the fences and the cleaning up and also brought his tractor in to dig out the culverts.[28]

32 In addition to the fencing repairs, the removal of the trees and plants located around the house was carried out voluntarily by a local contractor who donated his services.[29] There was also Mr Thomas' cousin, a qualified electrician, who came to Horsham for a couple of days and assisted in the reconnection of electrical services to the farmhouse and the outbuildings.[30]

33 Returning to the farming work, it was, however, Mr Thomas who performed the vast bulk of the fencing repairs and work on the stockyards. Although he had some knowledge of the mechanics of fencing prior to Black Saturday, he determined to acquire a greater expertise so that he could carry out the job. He spent a day with Waratah Steel and then went and worked with the Catchment Authority for a short time as a fencer. He subsequently obtained employment for several weeks with a local fencing contractor, Mr Guest.

34 The basic principle may be trite but bears repeating: the plaintiff is entitled to be put back, so far as money can do it, into the same position as if the damage had not occurred.[31]

35 The law is also clear in relation to the measure of damages in the case of damage to goods:

It has come to be settled that in general the measure of damages is the cost of repairing the damaged article.[32]

However, there is an exception where a reasonable substitute is available for a price significantly less than the cost of repairs. In that situation the replacement cost is the measure of damages.[33]

36 A third and equally important principle is this: when goods are damaged by the negligence of a tortfeasor the owner of the goods suffers an immediate loss represented by the diminution in the value of the goods. [34] That damage is an essential ingredient of the cause of action accruing to the owner at that time.

37 Here, the question is simple: is Mr Thomas able to claim for the cost of repairs and reinstatement, notwithstanding that the work has been carried out either by himself or by his friends and neighbours?

38 Counsel for Mr Thomas relied primarily upon an old case, The Endeavour.[35] The SS Endeavour was damaged in a collision with another ship, which was found to be solely to blame. Repairs were carried out to the Endeavour, but its owners went bankrupt before paying for the repairs. Whilst the decision of the Hon. Sir James Hannen (which is admirably brief) was directed to the entitlement of the shipwright to recover the unpaid fruits of his labour, the following was said:

The Endeavour has been injured. Her owners are entitled to be paid the amount of such injuries. It has been ascertained that the amount is [₤]464... That is the measure of the defendants' damages, and is the amount they are entitled to recover. If somebody out of kindness were to repair the injury and make no charge for it, the wrongdoer would not be entitled to refuse to pay as part of the damages the cost of repairs the to the owner.[36]

39 Although not referred to by counsel, this proposition has been applied by the English Court of Appeal on multiple occasions in recent years. Jones v Stroud District Council[37] was a case involving negligent approval of building plans by a local planning authority. The owner of the property sued the local authority. Whilst there was evidence of the cost of repairs, there was no evidence of any payment or liability to pay the builders. Neil LJ (with whom Fox LJ and Ralph-Gibson LJ agreed) said:

The plaintiffs failed to provide any documents relating to the work carried out by Marlothian Ltd and there is no evidence that the plaintiffs had paid or are liable to pay any sum to Marlothian in respect of that work. It was submitted on behalf of the plaintiffs, however, that if the repairs were necessary and were carried out it was not to the point that the plaintiffs had not proved that they had paid for the repairs themselves...

In my judgment, on the facts of this case this submission is correct.

It is true that as a general principle a plaintiff who seeks to recover damages must prove that he has suffered a loss, but if property belonging to him has been damaged to an extent which is proved and the court is satisfied that the property has been or will be repaired I do not consider that the court is further concerned with the question whether the owner has had to pay for the repairs out of his own pocket or whether the funds have come from some other source.[38] (Emphasis added).

40 In Burdis v Livsey[39] the English Court of Appeal gave detailed consideration to a claim for the cost of repairs to a motor vehicle as well as the cost of car hire whilst the motor vehicle was off the road. The plaintiff's motor vehicle was damaged in a collision. It was common ground that the repairer restored the vehicle to its pre-collision state. The plaintiff entered into a credit repair agreement with a financier which provided for payment to the repairer for the cost of the repairs. However, the credit agreement was subsequently held to be unenforceable against the plaintiff as it failed to comply with the relevant consumer credit legislation. The Court of Appeal held that the recovery of damages was unaffected by the fact that the repairs were carried out at no cost to the plaintiff. The correctness of Jones v Stroud District Council was a primary consideration, given what had been said by the House of Lords in Dimond v Lovell.[40] Aldous LJ delivered the judgement of the Court:

Thus at the moment when the accident occurred Miss Burdis suffered a direct and immediate loss, the measure of which was the cost of the repairs which were in fact carried out (₤2,981.19). But it was not a condition precedent to the recovery of compensation for that loss that the car be repaired: Miss Burdis's cause of action for the recovery of damages representing the diminution in the value of her car caused by Mr Livsey's negligence was complete when the accident occurred: see The Glenfinlas (Note)... and The London Corporation.... Similarly, a claimant's damages will not be affected by the fact that, in the event, the repairs are carried out at no cost to him: see The Endeavour... where the vessel was repaired but, due to the bankruptcy of the owner, the repairer was never paid.[41]

The Court then distinguished the position of an immediate and direct loss such as damage to goods from that of consequential (or potential future) loss such as the hire of a replacement motor vehicle,[42] a distinction which is not relevant here, and concluded:

In a case of direct loss, subsequent events will operate to reduce or extinguish the loss only in so far as such events as referable to the claimant's duty to mitigate his loss, and hence referable in a causative sense to the commission of the tort.[43]

The Court then went on to affirm the decision in Jones v Stroud District Council:

However, since in our judgment repair costs are merely the measure of a direct loss, suffered when the tort was committed, and are not to be regarded as falling within the category of potential future losses claimable as special damage, the general rule identified in Lord Bridge's example in Hunt v Severs, and the exceptions to that general rule to which we have just referred, are of no materiality for present purposes.

In our judgment, therefore, Neill LJ's judgment in Jones v Stroud District Counci...l represents a modern restatement of a principle established by the earlier authorities.[44]

We accordingly conclude that Jones v Stroud District Council remains good law, and that the principle which it restated has not been in any way eroded by subsequent authority.[45]

41 In this country the principle has been applied by the Court of Appeal in New South Wales in Anthanasopoulos v Moseley[46] where owners of motor vehicles sued for the cost of hiring replacement vehicles while their vehicles were being repaired. The insurer of the vehicles provided a courtesy car hired by the insurer from a hire company which billed the insurer directly. In essence, the provision of the hire car was a voluntary benefit provided by the insurer. Beazley JA concluded after reviewing a number of English shipping cases:

I consider that the better solution is derived from the long line of authority traceable to The Greta Holme, to the effect that the injury to property which deprives a party of the use of the thing is compensable. It is irrelevant if a third party provides a substitute for the thing damaged and the principle res inter alios acta applies so as to make it irrelevant as to the basis upon which the third party provides the replacement. [47]

42 Subsequently, in Gagner Pty Ltd (T/as Indochine Café) v Canturi Corporation Pty Ltd,[48] Campbell JA (with whom Macfarlan JA and Sackville AJA agreed), said:

What counts as making good the damage, for the purpose of assessing damages for torts, needs to be understood bearing in mind what the purpose is for which one is asking what counts as "making good". That purpose is ascertaining what the work is that is necessary to undo the consequences of the tort having been committed. The only interest of the defendant that bears upon the question of whether rectification work is reasonable is a financial one, sometimes expressed in the principle that a plaintiff must mitigate his damage.[49]

43 In this state, last year Bell J in Tehan v Saric[50] dealt with the question of the recovery of damages where the owner of the damaged motor vehicle had not paid for the cost of repair, due to a particular statutory prohibition. His Honour, after review of several of the English cases I have referred to, concluded:

Mr Tehan's direct and immediate loss was compensable in an award of damages. It is represented by the cost of repairing his damaged vehicle. That loss crystallised and was recoverable when Mr Saric's negligent driving caused the accident resulting in that damage. It is irrelevant in law that, under the towing and repair legislation, repairers cannot charge or recover fees or charges without the written authority of the owner. With respect, the learned magistrate erred in law in deciding otherwise. [51]

44 Finally, it is worth noting that in the current edition of McGregor on Damages the following is said by the learned authors:

The fact that the repairs have not yet been executed before the hearing of the action or will never be executed at all does not prevent the normal recovery. Since damages may on general principle be given for prospective loss, it is immaterial that the repairs are not yet executed.[52]

45 Allowing for the commercial cost of reinstating and replacing the fences where such work has (at least in part) involved voluntary labour on the part of Mr Thomas' friends and neighbours is also consistent with the principle that a plaintiff is not required to bring into account by way of reduction of his or her claim collateral benefits received from third parties unless those benefits were intended to relieve the tortfeasor of liability to compensate the plaintiff. Here it was admitted by Powercor that the labour was not performed for its benefit.

46 In the seminal decision of the High Court in National Insurance Co of New Zealand Ltd v Espagne, [53] Windeyer J said:

In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause. (Emphasis added).[54]

47 Recently in Zheng v Cai,[55] the High Court returned to the question of benefits obtained by a plaintiff from another source and reviewed what had been said in Espagne:

In Parry v Cleaver Lord Wilberforce remarked that the decision not to make a deduction from damages for receipts from voluntary funds had been put either on public policy or the intention of the subscribers. His Lordship referred to what had been said to that effect by Andrews CJ in Redpath v Belfast and County Down Railway. But these considerations are not discrete; rather, it is the policy of the law which informs the importance of the wishes of those providing the benefaction.

This is apparent from the treatment of the subject by Windeyer J in Espagne. His Honour began with the propositions that damages for personal injuries are not to be assessed by constructing a profit and loss account and that the compassion, kindness and sympathy of friends and the gifts of charitable persons cannot be weighed against pain and suffering caused by the wrongdoer, such that the balance of account favours that wrongdoer. From that basis his Honour reasoned that voluntary gifts should not diminish damages because "they are given for the benefit of the sufferer and not for the benefit of the wrongdoer".[56]

Subsequently the Court cited with approval the following from Windeyer J in Espagne:

If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances.[57]

To that there may be added the observation by Professors Harper, James and Gray in their treatise upon United States tort law:

Often of course the intent was never even thought out by the donor, certainly not expressed. In these cases of private generosity the best solution seems to be a rule of thumb that would give greatest scope to the donor's generosity and to the adjustment of moral obligations within the more or less intimate relationships that usually bring such generosity into play. The gift should be disregarded in assessing damages. (Citation omitted).[58]

48 In this State there have been several decisions dealing with the extent to which the Espagne principles are to be applied in cases outside the personal injury sphere. In particular, in Wollington v State Electricity Commission (Vic) (No 2),[59] Young CJ and Menhennitt J dealt with the issue of whether damage to chattels could be assessed by using the Espagne principles. The Plaintiff had received payments from a bushfire relief fund which the State Electricity Commission had sought to set off against his claim for property damage arising out of the fire. Their Honours said:

The answer to the question whether a particular receipt by a plaintiff does or does not diminish the liability of the wrongdoer must in our opinion in the absence of any other rule of law depend as a matter of principle upon the character of the receipt. In other words, it is necessary to ask whether the receipt is of such a character that it does diminish the liability of the wrongdoer. No legal rule exists which enables a court to say whether this or that receipt by a plaintiff does diminish the liability of a wrongdoer and the Court is thus perforce thrown back upon general reasoning. It is in that way that the cases concerned with personal injuries approach the question and accordingly we think that the principles to be extracted from those cases are applicable to the present problem. No real reason was in our view advanced against the application of such principles. We therefore think that Fullagar, J. was correct when he said (at p. 116): "The decided cases make it clear that my decision on the question at issue must turn upon the proper characterization of the payments made to and received by the plaintiff..."[60]

49 Other courts have accepted a broad extension of the Espagne principle. For example, in the Full Federal Court decision of Monroe Schneider Associates (Inc) & Anor v No 1 Raberem Pty Ltd & Ors,[61] Burchett J (with whom O'Loughlin J agreed) said:

In my view, the principle of Espagne is applicable generally, and not merely as a rule in actions for damages for personal injuries.[62]

50 Further, in Gordon v Ross[63] the New South Wales Court of Appeal, Basten JA (Hodgson JA and Bryson JA agreeing) found that:

The defendant also suggested that the amount for past economic loss should have been reduced by the amount of rent included in the calculation for the period during which the plaintiff and his family were residing on a property owned by the family of his wife, where he did not pay rent.

The basis for that submission was not explained. In accordance with the principle established in Liffen v Watson... the plaintiff's damages should not be reduced on account of board and lodging provided by relatives or friends... That principle was adopted by the High Court in The National Insurance Co of New Zealand v Espagne... Windeyer J stating at 597:

"It is generally accepted that aid given by friends and philanthropic persons to ameliorate the lot of a sufferer ought not to be taken into account in assessing damages."

There are similar statements in the judgment of Dixon CJ at 573.[64]

51 As I mentioned earlier, this line of authority supports the preposition that when an injured party has benefited from the kindness of others (not intended to release the wrongdoer of his or her obligations) then such benefit should be ignored in the assessment of damages.

52 Counsel for Powercor relied upon a decision of the Supreme Court of New South Wales in Hicks v Lake Macquarie City Council.[65] Mr and Mrs Hicks successfully sued the council for damage suffered to their property as a result of negligence and nuisance on the part of the council. Their primary claim related to diminution in the value of the property but they also sought to recover damages for Mr Hicks's labour and expenditure removing debris and material and then re-planting a number of plants which were needed to restore the amenity of the property. The part of Loveday J's judgment that was relied upon was as follows:

The claims for the value of Mr Hicks' labour must also be disallowed - even that relating to work in his own property. It seems odd that if Mr Hicks had expended money in employing someone to remove debris from the land he could have recovered that cost but that he cannot recover the value of his own labour to do the same job. The reason as I understand it is that you can recover only economic loss to him and his wife and the expenditure of his labour did not cause any economic loss. I acknowledge the principle. I do not seek to defend its morality.[66]

There is an immediate apparent distinction between this case and that of Mr Thomas (and for that matter all the other cases I have referred to). Mr Thomas did not seek damages for the diminution in the value of his property, rather he sought damages for the cost of repairs and rectification occasioned by Powercor's negligence. The second distinction is one noted by his Honour who prior to the subject passage said as follows:

The claims by the plaintiffs under this head in respect of work on the reserve on one view are in substance for abatement and/or attempted abatement of nuisance.[67]

The third distinction is one apparent in that part of the judgment that I have just recited - that the claim related to work done on an adjacent property and not reinstatement or repairs to his own property which formed only a portion of the claim: the removal of debris. The decision in Hicks is readily distinguishable and can be put to one side.

53 Finally, there is another matter of some significance. This is not a claim in which the tortfeasor asserts that there is any element of double recovery by Mr Thomas - rather that absent any direct financial loss on his part he is not entitled to damages for the reinstatement and repair of the fences. That leads to a point of fairness and consistency that arises if Powercor's submission is accepted. This is a group proceeding in which a number of properties were damaged by the fire. A member of the group (perhaps a neighbour) may have been fortunate enough to be in a position to afford to engage and pay for a fencing contractor to repair the fences. He or she would be able to recover the cost of reinstating the damaged property; as would an insurer in bringing a subrogated claim through an insured. But Mr Thomas who expends his own labour and that of friends to reinstate his fences is precluded from claiming damages unless, on Powercor's submission, he can show the use of his labour has produced a direct financial loss in the sense of a demonstrable loss of earnings. I do not think that the law can be so inflexible or unfair.

54 I am satisfied that Mr Thomas is entitled to recover the reasonable commercial cost of repairs to the particular piece of damaged or destroyed infrastructure.

55 There is no need to value either his or his friends' labour input in carrying out these repairs; accordingly, it is not necessary to traverse decisions such as Griffiths v Kerkemeyer,[68] or its English predecessor, Donnelly v Joyce[69] or subsequent decisions of the High Court such as Van Gervan v Fenton[70] or C.S.R. Ltd v Eddy.[71]

The next question - What is the reasonable commercial cost of effecting the fencing repairs? (Question 6)

56 The parties were agreed that the reasonable cost of the materials component of the repairs was $4,591 per kilometre, however, they could not agree as to the reasonable cost of the labour component.

57 It is appropriate to go first to a quote that was obtained by Mr Thomas from Mr Guest, a Wimmera based fencing contractor, for the reinstatement of the fencing. At Mr Thomas' request, Mr Guest provided a quote for carrying out the work.[72] The quote is dated 15 May 2009 and comes to $48,150, inclusive of GST for just over 6,100 metres of fencing. The labour component is valued at $11,147 (made up of $1.30 per metre for the fencing and $50 per post assembly). On Mr Hartley's calculations this came to $1.83 per metre as an average figure.[73] The evidence of Mr Thomas was that Mr Guest is an expert fencing contractor in the district with a very solid reputation.

58 The experts (Mr Aberdeen, Ms McGuckian for Mr Thomas and Mr Hartley for Powercor) also provided estimates in relation to the cost of reinstating the fencing. Mr Aberdeen's estimate of the labour component on behalf of Mr Thomas ($5.23 per metre)[74] was much higher than the Guest quote. He was supported by Mr McGuckian, who was dubious about the accuracy of the Guest quote. I do not accept Mr McGuckian's reservations about the accuracy of the Guest quote; the circumstances of its provision to Mr Thomas were explained by Mr Thomas. Rather than working on a contra basis for Mr Guest, it was decided that a quote for the work would be provided by Mr Guest with instructions as to the length of fencing provided by Mr Thomas.[75]

59 I can see no reason to prefer the views of Messrs Aberdeen and McGuckian over that of an experienced local fencing contractor, well versed with the conditions in the Wimmera, who had inspected the farm and determined the necessary requirements of the job. Indeed, in the course of the concurrent evidence session, both Mr Aberdeen and Mr McGuckian accepted that provided Mr Guest's quote was comprehensive then it could be regarded as a fair assessment,[76] notwithstanding it was lower than the market figure as they perceived it. Mr Hartley also agreed that it was a low, but not very low, labour quote.[77]

60 In arriving at the figure of $1.83, Mr Hartley confirmed that he had spoken to Mr Guest and obtained a revision of the quote shortly prior to the trial to the following effect: the materials cost had increased by 5% and any new gates would be provided at a rate of $150.00 for supply and installation.[78]

61 Mr Guest also quoted $1,000 per kilometre (or $1 a metre) to clear up the old fence.[79] No one disputed this figure.

62 Therefore the appropriate allowance for the labour component of the Guest quote is $2.83 per metre (i.e. the $1.83 calculated by Mr Hartley, plus $1 for the clear up) or $2,830 per kilometre.

Reinstatement of the farm shed/garage (Question 8)

63 The fire destroyed a corrugated iron farm shed, used as a garage, which was located north west of the Thomas' house. It was replaced by a shed of greater but unspecified dimensions with a crushed rock floor (as opposed to the pre-fire concrete floor).

64 Mr Thomas claimed the amount at $15,000,[80] albeit that the actual cost of replacing the shed was $17,312.

65 Powercor argued that the claim of $17,312 or, for that matter, $15,000 would be overcompensation. It contended that there must be a deduction in the amount paid by Mr Thomas for the replacement shed by reason of "betterment", submitting that $7,500 was appropriate yet it provided no basis for this calculation apart from stating that cost is usually measured by surface area.[81]

66 Mr Thomas accepted that a reduction should be made, but only a modest one.

67 Shortly after the fire, a quote for $15,191 for a shed with roughly the same dimensions as the old shed and with a concrete floor was obtained from a local concreter.[82]

68 The actual payments made in respect of the new shed were $15,400 for the new shed,[83] with other associated costs: pulling down ($572),[84] scalps ($734) and cartage ($606)[85] making up a total cost of $17,312.

69 Mr Thomas gave evidence that the new shed was "higher, wider and deeper" than its 50-60 year old predecessor.[86] He also said that had he built a replacement shed with a concrete floor, instead of crushed bluestone, it would have cost a lot more.

70 Both counsel relied upon passages from the seminal judgment of the English Court of Appeal in Harbutt's Plasticine v Wayne Tank & Pump Co Ltd.[87]

71 In Harbutt's Plasticine, the plaintiff, the plasticine company, was not able to rebuild the mill which had been destroyed as a result of the breach of contract by the defendant. The plaintiff rebuilt the factory but in a different design. The question was whether the plaintiff was entitled to the actual cost of replacement or was limited to the difference in value, comparing the old mill with the new one.

72 Both counsel referred to the judgment of Denning M.R[88] where his Lordship stated:

But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge the defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old: but I do not think the wrongdoers can diminish the claim on that account. If they had added extra accommodation or made extra improvements, they would have to give credit. (Emphasis added).[89]

73 Counsel for Powercor also relied upon what was said in Harbutt's Plasticine by Widgery LJ:

It was clear in the present case that it was reasonable for the plaintiffs to rebuild their factory, because there was no other way in which they could carry on their business and retain their labour force. The plaintiffs rebuilt their factory to a substantially different design, and if this had involved expenditure beyond the cost of the old, the difference might not have been recoverable, but there is no suggestion of this here. [90]

74 Two propositions flow from the decision in Harbutt's Plasticine. First, in general, for an item that is destroyed, the proper measure of damages will be the cost of replacement (rather than difference in value) and second, that if that replacement involves improvement above and beyond what was there before then account must be given by the plaintiff for the additional benefit.

75 The second point is consistent with what was said by the House of Lords in an earlier decision of British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd.[91] Sheller JA in the New South Wales Court of Appeal decision of Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd[92] explained the decisions in the two English cases as follows:

The facts were different. The factory owner [in Harbutt's Plasticine] had no choice but to build the replacement factory which it did. On the other hand the railway company [in British Westinghouse] chose, albeit for good commercial reasons, not merely to replace the turbines but to purchase a superior version.[93]

76 In Gagner, Campbell JA, in the course of a review of a number of the authorities on this point, said:

Even in circumstances where there is no practicable way of making good damage than by replacing damaged property with something superior to the damaged item, it can in some circumstances be appropriate to take the superiority of the replacement item into account in assessing the quantum of the damages. Hoad v Scone Motors Pty Ltd arose when the plaintiffs' tractor and mower, used by them in their farming business, was destroyed by a fire caused by the defendants' negligence. They purchased new replacement equipment, an action held to be a reasonable mitigation of their loss. This was because no second-hand replacement equipment was available locally, and there was a practical need for the plaintiffs to be able to obtain service for the equipment from its vendor. However, the majority (Moffitt P and Hutley JA) held that the plaintiffs were not entitled to damages equal to the purchase cost of the replacement equipment. Consistently with British Westinghouse, the plaintiffs were required to bring to account any benefits that accrued to them in consequence of their mitigation. At the time of the fire the plaintiffs were intending to give up their property in 18 months time, and if the fire had not occurred would not have replaced their existing tractor. The new tractor, when sold at the time the farm was given up, was likely to bring more money than the old tractor would have brought, and the court held that that difference was one that the plaintiffs were required to bring to account in assessment of damages.[94]

77 Accordingly, as I mentioned earlier, it is appropriate, where commercial goods are destroyed or damaged beyond repair, to allow a replacement of new for old. However, if there is a material difference which results in a superior replacement then an allowance should be made for that improvement or betterment. So returning to Mr Thomas' case, it seems clear that, notwithstanding the lack of a concrete floor, the dimensions of the new shed are such that he has ended up with a superior shed which was "higher, wider and deeper".

78 However, determining the extent of that betterment is well nigh impossible. Counsel for Powercor suggested a figure of $7,500 (being 50% of $15,000) without a shred of evidence being led as to the differential in costs between the superior version and that of a reasonable replacement.. The authorities on this point, it seems to me, are clear.

But the defendants did not call any evidence to make out a case of betterment on these lines and we were told that in fact the planning authorities would not have allowed the factory to be rebuilt on the old lines.[95]

There was no evidence of any advantage to the plaintiff beyond the speculative proposition that the new pavement might last longer than the old one would have, if it had been properly laid.[96]

81 More recently, Bongiorno J of this Court in Paper Australia Pty Ltd v Ansell Ltd[97] stated:

That the onus of proving the quantum of any betterment is on the defendant is clear not only from Harbutt but also from the judgment of Handley JA in Tyco Australia Pty Ltd v Optus Networks Pty Ltd . In that case his Honour acknowledged the principle in the law of damages derived from cases such as Fink v Fink and Chaplin v Hicks, that the common law does not permit difficulties of estimating a plaintiff's loss to defeat his remedy. But he went on to distinguish the position of a defendant who seeks to have damages reduced because of a chance that the plaintiff derived a benefit from the wrong which the defendant committed. He said a defendant does not have the plaintiff's advantage. He is not in this "favoured position." A defendant must prove the quantum of the reduction he seeks. See also Roberts v Rodier and ors, J & B Caldwell Ltd v Logan House Retirement Home Ltd, and Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd.[98]

...

The plaintiff's damages should not be reduced for betterment. Even if a case could be made that they should be so reduced, the defendant has failed to discharge its burden of proving the quantum of any such reduction.[99]

82 Powercor has not adduced evidence to show the level of betterment accruing to Mr Thomas as a result of the construction of the new shed. It bore the onus and has not discharged it.

83 In any event, Mr Thomas' claim for damages in the sum of $15,000 has an allowance for a degree of betterment as it represents a discount from the cost of reinstatement of just over $17,000 with no account being taken of the fact that the new shed does not have a concrete floor. Moreover, the figure of $15,000 tallies generally with the quote for a replacement shed provided in February 2009.

84 In the circumstances, it is appropriate to allow the sum of $15,000 in relation to the cost of reinstatement of the shed.

85 The stockyards were situated close to the house and the woolshed and were used to draft and manage cattle as part of Mr Thomas's livestock business. It was not disputed that there was significant damage to the yards in the fire. The dispute between the parties related to:

(a) the cost of carrying out the repairs, particularly given the labour component provided by Mr Thomas; and

(b) whether there was to be any reduction for betterment in relation to the improved condition of the yards after the repairs.

86 The stockyards (originally of timber construction) were an integral part of Mr Thomas' farming operation when running cattle on the property. He dealt regularly in the sale and purchase of cattle. Any shipping or treatment of the cattle had to be organised using the yards.

87 Although there were only a dozen cows and calves on the property, from time to time (particularly after the autumn break) the carrying capacity would increase.[100] Mr Thomas also explained (and I accept) that it was necessary to have a cattle facility given that his income was produced by buying and selling cattle.[101]

88 The fire was so intense that the main tank next to the yards melted and the yards themselves caught on fire[102] causing significant damage.

89 Mr Thomas' evidence was that he, in effect, managed the repair and reinstatement of the yards using his own labour, with assistance from contractors. He organised the rebuilding of the yards with steel components, purchasing the steel himself and engaging a contractor to carry out the welding.[103] It took him three to four days to clear up the yards and effect the repairs[104] with the assistance of the contractor. The actual amount expended by Mr Thomas was $3,312[105] to render the yards serviceable, however the repairs to the yards are not yet complete.

90 The contest between the experts was relatively confined. Messrs Aberdeen and McGuckian after conferring overnight during the course of the concurrent evidence session, arrived at a total cost of rebuilding and repairing the cattle yards at $12,962 including the expenses already paid by Mr Thomas. Again, consistent with the inability of the experts to agree upon most things, Mr Hartley was given leave to file a supplementary report which he did on 26 September 2011 and arrived at a figure of $5,463.[106]

91 The Hartley figure does not include any allowance for the cattle ramp which had been rebuilt by Mr Thomas nor does it include any allowance for the time and labour spent by Mr Thomas in carrying out the repairs to the yards.

92 In my opinion, the estimate given by Messrs Aberdeen and McGuckian should be accepted. It strikes me that a figure of just short of $12,000 is a very modest sum for the repair of set of cattle yards handling moderate numbers of stock. Mr Thomas is entitled, as I have ruled previously, to the commercial cost of a cattle ramp allowed in their calculations. Indeed the Aberdeen and McGuckian estimate may do him a disservice as it includes no allowance for the commercial cost of the work carried out by Mr Thomas when assisting the contractor. On the other hand, it is clear that there is a degree of betterment in that he now has a set of steel yards as opposed to old timber yards and the figure of just short of $12,000 seems, to my mind, to be fair and reasonable.

94 It is quite extraordinary that the parties were not able to agree on a claim that amounted to $5,296.[107]

95 A number of second hand goods stored in the garage/shed were destroyed in the fire. They were the subject of a claim by Mr Thomas upon his insurer. He obtained quotes for the replacement of the particular items and ultimately the insurer paid out the sum of $5,296.

96 Powercor argued that the proper allowance in respect of this loss was not replacement of new with old (which is apparently what happened) but rather the market value of the damaged items assuming that there was a second hand market where replacement items could be obtained.

97 Powercor led no evidence on this issue, simply asserting that a reduction of one half should be made on the costs claimed. Once the cost of the replacement items was established, for the reasons I set out at [79]-[83], there was an evidentiary onus on Powercor to demonstrate that (a) there was a market for a reasonable substitute; and (b) the cost of such a substitute could be obtained at less than the replacement cost.

98 Absent such evidence, Mr Thomas is entitled to the replacement cost.

99 In my view, the amount of $5,296 should be allowed in relation to the replacement of the contents of the shed.

Administration and inconvenience damages (Questions 10 and 11)

100 Mr Thomas seeks to recover an amount of damages for "inconvenience and administration expenses".

101 The source of the claim for "inconvenience" is a decision of Gobbo J in this Court in Clarke v Shire of Gisborne[108] in which his Honour, after a review of the authorities, concluded:

These cases appear to recognize clearly the right to recover damages for physical inconvenience both in contract and in tort. They also appear to put the right to recover mental distress damages in contract beyond doubt but the position in tort remains less certain.[109]

His Honour went on to say after considering several New Zealand decisions:

These decisions found the proposition that a plaintiff may recover damages in tort for anxiety and worry where such anxiety or worry is a foreseeable consequence of the defendant's negligence. Mere inconvenience will not suffice; nor will the inconvenience of having to litigate an action.[110]

It may well be that a distinction could and should still be preserved between physical inconvenience and mental distress so that the latter is not a basis for damages unless it is tied to what is customarily within a personal injury claim. But the distinction between inconvenience and stress is not always an easy one to make.[111]

102 Clarke therefore stands for the proposition that

(a) a claim in tort may be made for damages in the form of physical inconvenience;[112] and

(b) a claim for physical inconvenience is distinct from that of mental distress - but separating the two may be easier said than done.

103 Counsel for Mr Thomas argued that "inconvenience and administrative expenses" damages related to the following matters:[113]

(a) Mr Thomas fighting the fire, in the sense of removing sheep, obtaining fire fighting equipment, and endeavouring to combat the fire;

(b) Mr Thomas' administration of his own affairs such as activities in terms of setting the property back to rights directly after the fire but not extending to the repair and reinstatement of various pieces of infrastructure; and

(c) the inconvenience of Mr Thomas living in a house which for a period of time was inundated by smoke and fumes given off by damaged insulation batts.

Counsel submitted that a combined allowance of $5,000 should be made under this head.

104 It was accepted by his counsel, that Mr Thomas could not recover damages for anxiety or stress as to do so would be to permit him to recover damages for psychological injury which is prohibited absent compliance with Part VBA of the Wrongs Act 1958 (Vic).

105 Part VBA governs claims for non-economic loss (whether in tort or any other cause of action).[114] Section 28LC(I) provides that this Part applies to "the recovery of damages for non-economic loss", except for certain types of claim not relevant to this proceeding.

106 Non-economic loss is defined as meaning "any one or more" of the following:

"(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of enjoyment of life".[115]

and "injury" is defined as personal or bodily injury and includes "psychological or psychiatric injury".[116]

107 It is not open to a court to make an award of any damages for non-economic loss related to psychological injury absent compliance with Part VBA - which requires establishing the existence of a significant injury as set out in s 28LF. To put it simply, an award for general damages arising from a psychological injury cannot be made unless the claimant establishes a significant injury in accordance with the provisions of Part VBA.

108 Mr Thomas' claim is not excluded by s 28LC; there are two necessary triggers for Part VBA to be engaged:

(a) that the claim is one of recovery for damages for non-economic loss; and

(b) that the damages sought are in respect of an injury as defined in the Wrongs Act.

109 The definition of non-economic loss is not inclusionary. It covers three categories: "pain and suffering", "loss of amenities of life" and "loss of enjoyment of life" but, as the definition makes clear, may encompass "more". In my view, a claim for physical inconvenience and administration expenses in the sense relied upon by Mr Thomas must be a claim for non-economic loss. No precise loss or special damage is identified and it is not suggested that any loss of income or, loss of earning incapacity was sustained under this head. Rather, the claim is for the general inconvenience with Mr Thomas' daily affairs consequential upon the fire. I am satisfied that the first limb is engaged.

110 The question as to whether the claim for inconvenience falls within the definition of injury under Part VBA is not so easy to determine. Again, the definition is inclusory. The question essentially is whether personal or bodily injury, including psychological or psychiatric injury, encompasses a claim for inconvenience.

111 The decision in Clarke, was considered by the Court of Appeal in Boncristiano v Lohmann,[117] another case arising out of allegedly defective building repairs. The trial judge awarded damages for "inconvenience, disappointment and stress" flowing from the builders' breach of contract. Whilst the Court confirmed the decision in Clarke to the extent that damages for physical inconvenience were available in a claim for breach of contract,[118] the following was said by Winneke P (with whom Charles and Batt JJA agreed) as to a claim for damages for inconvenience and distress:

The appeal of the owners is only against the sums awarded by the judge in respect of what can be briefly called "inconvenience". It is their contention that the damages awarded under this head are "manifestly inadequate and against the evidence and the weight of the evidence". In this respect, as it seems to me, the appeal of Mr Boncristiano creates difficulty for this court because this is an appeal against only portion of the sum awarded to him as general damages. It would seem that his Honour was influenced to assess the general damages claimed by Mr Boncristiano under the two heads as a consequence of the same procedure being adopted by Gobbo J in the case of Clarke v Shire of Gisborne whether the learned judge had assessed the claim for general damages made by the second plaintiff separately as to the injury to health and loss consequential upon inconvenience. But, in truth and in law, a claim for general damages consequent upon a breach of contract is but a single claim for damages for inconvenience and distress including damages for deleterious consequences to health flowing from the physical inconvenience. This, I think, was recognised by Gobbo J in Clarke's case at 997 where his Honour observed that the element of stress flowing from physical inconvenience "is already reflected in the award of damages made in [the second plaintiff's] favour"(Emphasis added).[119]

His Honour concluded that it was "neither profitable nor correct" to consider an award for inconvenience as being separate and distinct from an award of mental distress resulting therefrom.[120]

112 Returning to part VBA of the Wrongs Act 1958, there are three decisions of the New South Wales Court of Appeal on an analogous piece of legislation (the Civil Liability Act 2002 (NSW)) which provide further guidance on this issue, although the definition of injury under the New South Wales Act in both cases differs to that contained in Part VBA. Under the Civil Liability Act 2002 (NSW), injury is defined to mean personal injury and included prenatal injury, impairment of a person's physical or mental condition and disease.[121] Notwithstanding the difference in material parts of the legislation, the observations of the Court are of assistance on this issue.

113 In State of New South Wales v Ibbett,[122] the Court was concerned as to extent to which the Civil Liability Act covered an intentional act done with intent to cause injury. Ipp JA said as follows:

An essential element of the application of s 3B(1)(a) is that the civil liability asserted must be in respect of "injury".

The damages sustained by Mrs Ibbett were, according to the trial judge's findings, caused by "anxiety and distress". The State contended that s 3B(1)(a) did not apply because the anxiety and distress did not amount to an "injury" within that section.

...

I would not uphold this submission. In my view, anxiety and distress would be an "impairment" of a person's mental condition in accordance with the ordinary meaning of "impairment", as the word is used in s 11.

In my opinion, irrespective of whether the ordinary meaning of the word is attributed to "injury" or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress.[123]

114 In New South Wales v Corby[124], the question arose as to whether the Civil Liability Act precluded aggravated damages and exemplary damages in a claim against the State. Basten JA said as follows:

Before pursuing these issues, it is convenient to note the other defined term, namely "injury". That term is defined in s 26A for the purposes only of Part 2A, within which s 26C is to be found. The definition reads as follows:

"injury means personal injury and includes the following:

(a) impairment of a person's physical or mental condition,

(b) disease."

Thus, in Part 2A, injury is equated with "personal injury" and is said to include impairment of a person's physical or mental condition. The concept of "personal injury" is not defined in P 2A, but where it is defined, as in s 5, for the purposes of P 1A, it is in identical terms to the definition "injury" in s 26A (apart from, again, the presently insignificant addition of pre-natal injury).

The ordinary meanings given to the word "injury" by the Oxford English Dictionary (Online) include:

"1. Wrongful action or treatment; violation or infringement of another's rights; suffering or mischief wilfully and unjustly inflicted.

...

3.a. Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage."

Although "injury" may refer either to the action of (or treatment inflicted by) the aggressor, or the consequence suffered by the victim, it is apparent that in the Civil Liability Act, the term is used to refer to the consequence and not the cause. Significantly, however, it is clear that the ordinary use of the word extends to a broad range of consequences, including hurt, loss, harm, detriment and damage. In its ordinary meaning, the phrase "personal injury" would cover all of those adverse consequences when suffered (as most of them must be ) by a person.[125]

115 Finally, this year, in State of New South Wales v Williamson,[126] a case involving allegations of unlawful assault and false imprisonment, Campbell JA concluded:

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