Economic Loss

Millar v ABC Marketing and Sales Pty Ltd [2012] NTSC 21 [13] (paragraphs altered so as to highlight separate issues)

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However, Mr Crawley submitted that if the loss of capacity to earn income was the result of both injuries, giving rise to a liability in two different employers for the same loss, payment by one employer will discharge the liability of the other employer pro tanto. I have no doubt that this submission is correct.[6] Another way of expressing the same idea, is the “rule against double compensation,” namely that a person cannot recover more than he has lost.[7] However, whether or not this general rule applies, depends upon the character of the payment already received. For example,

 

the general principle does not apply if the payment is intended as a gift

or is the result of a statutory right to receive a  pension;[8] 

or is a payment made under a policy of accident insurance taken out by the employee,[9] 

or if the Act by its terms precludes the Court from taking it into account, as was the case in Franklin Self Serve Pt Ltd v Wyber.[10] In Un v Schroter (t/as Povey), Carney & Ors,[11] Martin CJ held that so much of an amount paid for unfair dismissal pursuant to the operations of the Workplace Relations Act (Cth) as related to loss of wages could be set off against an award of workers compensation, but amounts received consequent upon conciliation processes under the Anti-Discrimination Act 1992 (NT) and consequent upon an award under the Crimes (Victims Assistance) Act 1982 (NT) could not be set off, because those payments were not shown to be for incapacity for any injury compensable under the Work Health Act, and were directed to assist the Worker in relation to a matter unrelated to incapacity resulting from injury as encompassed by the Act.

 

The reasons why these collateral benefits which are not to be taken into account have been variously stated as being

 

because the payment was not intended to be made in diminution of the liability of the party liable,[12] or

because the payee was obliged to recoup the payer either because of the legislation under which the payment was made, or

by reason of the existence of another restitutory remedy in the payer; or

because the payee bought the right to receive the money from the payer (as in the case of accident insurance,  pensions  and superannuation entitlements); or

because characterisation of the benefit will indicate whether or not it was intended to replace the loss,[13] or

because the weighing of conflicting policy considerations favour not taking the benefit into account,[14] or

because of policy reasons.[15] 

 

Whenever the question of double compensation arises, the character and purpose of the payment is, in my opinion a useful, if not a necessary, starting point.[16]

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[6] Bushby v Morris [1980] 1 NSWLR 81 at 88 (Privy Council).

[7] See Franklin Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249 at [29]; WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Ltd v Tarbotton [ 2003] SAWCT 40 at 78; Manser v Spry & Anor [1994] HCA 50; (1994) 181 CLR 428.

[8]  Paff  v Speed [1961] HCA 14; (1961) 105 CLR 549; The National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569; Redding v Lee [1983] HCA 16; (1983) 151 CLR 117

[9] Bradburn v Great Western Railway Co [1854] EngR 538; (1874) LR 10 Ex 1; The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR at 588.

[10] [1999] NSWCA 390; (1999) 48 NSWLR 249.

[11] [2001] NTSC 62.

[12] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446.

[13] See Luntz, Assessment of Damages for Personal Injuries and Death 4th Edn, pps 428-430.

[14] See for example Kars v Kars [1996] HCA 37; (1996) 187 CLR 354 at 382.

[15] Parry v Cleaver [1969] UKHL 2; [1970] AC 1 at 39.

[16] Redding v Lee [1983] HCA 16; (1983) 151 CLR 117 at 137 per Mason and Dawson JJ.