By Genevieve Barton, Law Graduate, and Rebecca Roberts, Partner

In this matter, the District Court of Western Australia considered an assessment of damages where the defendant raised two different novus actus interveniens and a failure to mitigate loss by the plaintiff.

Background

On 22 May 2013 the plaintiff and her son ordered food, including potato chips, from the Chicken Treat in Bunbury. Shortly after eating the chips, the plaintiff experienced a tingling and burning sensation in her mouth. She returned to the store and was told the chips had been contaminated with a ‘mild cleaning agent’. She was advised to rinse her mouth, but she continued to experience discomfort. The plaintiff contacted the store and was told to present to hospital. The chips had been contaminated with caustic soda.

The plaintiff was airlifted to Sir Charles Gardiner Hospital where she was treated for caustic burns to her upper gastrointestinal tract. Following the incident, she was diagnosed with neuropathic pain disorder and post-traumatic stress disorder and has continued to suffer with poor mental health and pain and discomfort. The defendant initially denied liability, only admitting liability on 30 September 2021.

The plaintiff worked for 18 months following the accident. She had not worked since. While her burns healed, the plaintiff reported she can only eat bland food and drink water since the incident due to the adverse sensation in her mouth.

Issue

There was no dispute that the plaintiff has suffered symptoms of pain, discomfort and poor mental health following the accident. Judge Lonsdale was tasked with assessing damages based on the evidence presented. The defendant submitted the plaintiff’s events following the accident amounted to a novus actus interveniens:

1. The plaintiff’s decision to accept redundancy from her employer; and
2. The plaintiff’s decision to have children following the accident.

The defendant also submitted that the plaintiff failed to mitigate her loss by refusing psychotherapy treatment.

All expert witnesses agreed the plaintiff suffered a significant psychiatric illness from the incident.

Legal Reasoning

Judge Lonsdale found the following:

• The plaintiff’s physical injuries and psychological condition were caused or materially contributed to by the defendant’s negligence;
• Whilst the plaintiff’s symptoms seem ‘manifestly out of proportion’ to her physical injuries, the principles of causation under s 5C of the Civil Liability Act 2002 (WA) means the defendant is obliged to compensate the plaintiff for the full extent of her condition;
• Drew factual similarities to the cases of Medlin v The State Government Insurance Commission (1995) 182 CLR 1 and Wainwright v Barrick Gold [2014] WASCA 15 when finding the plaintiff suffered a total loss of earning capacity after being made redundant;
• The redundancy combined with the physical and emotional symptoms the plaintiff suffered with following the incident made her ‘abandon hope’ of working;
• The plaintiff and her husband’s evidence indicating the plaintiff had no intention on having further children so she could focus on her career was accepted and the plaintiff would not have had more children but for her condition;
• The plaintiff had not failed to mitigate her loss by refusing psychotherapy due to financial reasons and being fearful to relive the incident;
• The plaintiff has a significant diminution in her earning capacity at a loss of 40% but would be suitable for some sort of work.

The plaintiff was awarded a total of $1,126,045.39 in damages. She was awarded $100,000 in general damages, $449,312 for past economic loss with $145,386.82 in interest. For future economic loss the plaintiff was awarded $350,000.

The plaintiff’s physical injuries had resolved by 2013. This case emphasises the weight the courts will put on the resulting mental harm a plaintiff may experience following the defendant’s negligence. While experts could not agree on a precise characterisation of the plaintiff’s condition, ultimately, she experienced a loss of amenities and enjoyment of life and presented significant mental symptoms resulting from the defendant’s negligence.