Anti-vaxxers and damages for economic loss: are the two intertwined?

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By Casey Thomas, Lawyer

Judgment has recently been handed down by the District Court of NSW in Barcos v Fairfield City Council [2022] NSWDC 642. In this matter the Plaintiff sued Fairfield City Council as the occupier and roads authority for Hill Street in Cabramatta.

The Plaintiff alleges to have sustained injury in February 2019 when she tripped on a small depression between a concrete gutter and asphalt road surface. The Council successfully relied on a defence under section 45 of the Civil Liability Act 2022 (NSW) (the CLA), which is available to roads authorities who did not have actual knowledge of the particular risk, the materialisation of which resulted in the harm.

Regardless of Council’s success in defending the claim, which was also due to the risk being obvious in line with section 5F of the CLA and Council’s reliance on section 43A of the CLA, Weber SC DCJ went on to provide brief comments on the applicable reasoning should questions of loss and damage have been required.

The Plaintiff claimed she had suffered economic loss, and would continue to do so in future, as a direct result of her injuries sustained in the incident. Interestingly, the Court noted the Plaintiff’s refusal to be vaccinated against Covid19, and this was relevant to the Court’s conclusion the Plaintiff had not suffered past economic loss.

District Court Judge Weber SC expressed the opinion regardless of the incident, the Plaintiff would not have worked up until at least the beginning of 2022. This formed approximately three of the four years from the date of incident until the judgment was handed down, over which period the Plaintiff claimed to have suffered a real financial loss as a result of her injuries arising from the incident. The implication is the Plaintiff’s failure to generate an income over that time came about due to personal choice rather than injuries sustained in this incident.

In public liability proceedings where a Defendant is able to successfully escape liability, a Court should still comment on and assess the Plaintiff’s quantum claim (i.e. if the claim were successful on liability, what the extent of the loss was suffered by the Plaintiff). The NSW Court of Appeal has held judges at first instance are required to make findings as to damages even where claims fail on liability issues. Judgments like Barcos are of great assistance in that they provide a useful tool for solicitors who are testing the veracity of a plaintiff’s claim for damages.


MetLife Insurance v MX (2019) NSWCA 228