Australia: Court of Appeal reduces excessive award of damages

Curwoods Case Note
Last Updated: 26 September 2011
Article by Andrew Parker

Judgment date: 20 September 2011. Allianz Australia Insurance Limited v Robert David Girone [2011] QCA245. Queensland Court of Appeal1

In Brief

An appellate court will only intervene and substitute its own findings in an appeal against damages, when an award is plainly under-estimated or over-estimated and, amending the award, will substantially alter the total damages.


The plaintiff alleged significant injuries to the neck, back and right leg when he was struck by a motor vehicle on 20 October 2001. Liability was admitted and the plaintiff had damages assessed at $660,637.30.

The defendant appealed against the judgment claiming that the quantum assessment was excessive. Whilst the appellant appealed in relation to 9 heads of damage, he was only successful in his claim for relief against the components for past and future economic loss.

Trial Judge's Findings

At first instance, the trial Judge found that the plaintiff had a past economic loss of $450 per week and a future economic loss of $400 per week.

The above figures were discerned from an analysis of the plaintiff's employment history prior to the accident, his employment following the accident, and the fact that further workplace and other unrelated injuries occurred in the years following the accident.

Past economic loss was restricted to periods following 2004 only. Between 2001 and 2004, whilst the plaintiff had been periodically absent from employment, his absenteeism was considered to be unrelated to injuries sustained in the accident.

Importantly, his Honour considered that during this period the plaintiff was nevertheless unfit for the type of employment engaged in (notwithstanding he managed to work), so that once he was terminated in 2004, he was entitled to economic loss at the rate of $450 per week until the date of trial.

Thereafter, his diminished earning capacity was assessed at $400 per week.

The defendant contended that the amount awarded for past and future economic loss was excessive, and that this resulted from an erroneous finding in terms of the plaintiff's pre-accident earning capacity and diminution in earnings as a result of the accident.

Court of Appeal Findings

Wilson AJA, with whom the other justices agreed, quoted Elford v FAI General Insurance Company Limited2(Elford) to explain when it was appropriate for an appellate court to disturb quantum findings in personal injury cases. Her Honour said:

"... if a particular component of such an award is plainly an under-estimate or over-estimate and if substituting a proper figure for that component will substantially alter the total, then the substitution should be made; but if there is nothing more than a wrong estimate of one component which has no substantial effect on the total, the award stands. The pointing out of a relatively small error in one estimated component of a judgment which is in substance a sum of estimates does not necessarily make the judgment as a whole wrong. It may be that some types of mistakes, for example arithmetical errors, will require correction irrespective of their effect on the total award, but the general rule should be as we have stated."3

Whilst her Honour found there was no basis to criticise the trial Judge for allowing past economic loss from 2004-2010, his Honour's allowance of $450 per week was considered to be excessive.

Her Honour said:

"[56] His Honour's finding that the respondent might have secured year round employment with the mill as he hoped was, with respect, unsupported by any evidence. His Honour's assessment that while the respondent might have lost his employment in any case, there was no reason why he could not have obtained other employment in the sugar industry was, with respect, speculative and unlikely given his actual employment history, his other medical problems (seizures and atrial fibrillation) and the absenteeism for which he was dismissed.

"[57] Given the respondent's actual work history and given the variable length of the crushing season, the assessment ought not to have been based on any more than his working 20 weeks per year and earning $900 net per week when he worked. That would have been equivalent to about $350 net per week over a whole year."

(our emphasis)

The Court of Appeal in turn also reduced the allowance for future economic loss, such that total damages were reduced by nearly $140,000.

As such, in accordance with the principles espoused in Elford 4, the Court of Appeal allowed the appeal, substituted its own findings for past and future economic loss, and ordered costs to be paid by the plaintiff.


The case is important as it shows that a simple arithmetical error will not be enough to cause the Court of Appeal to intervene in relation to an assessment of damages.5 Where, however, an award is plainly under-estimated or over-estimated, and substitution of the correct figure will substantially alter the total, a substitution will be made.

1. Muir JA; Margaret Wilson AJA; Fryberg J.

2. [1994] 1 Qd R 258.

3. per Wilson AJA at 33 quoting Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258 at 265.

4. [1994] 1 Qd R 258.

5. However, in such a case, an application may be made pursuant to r 388 of the Uniform Civil Procedure Rules 1999 (Qld). This is commonly known as the 'slip rule'.

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