Supreme Court's distinctive approach to assessing common law general damages in personal injury claims

The Plaintiff, Walter Greenall, passed away in March 2022 at the age of 88 having been diagnosed with mesothelioma in August 2021. Mr Greenall had worked for James Hardie in 1972 performing roofing work with asbestos cement sheets. Following his death, his estate claimed general damages, with a separate claim for care brought by his widow.

Liability had been admitted and the trial was concerned with the assessment of damages.

The Plaintiff estate sought general damages of $800,000 by reference to two earlier jury decisions in Queensland. Amaca submitted $200,000 was appropriate by reference to the short duration of the disease and various co-morbidities.

The Court rejected the widow’s care claim on the basis that she was not a ‘dependent’ within s 27 of the Workers’ Compensation and Rehabilitation Act (Qld) 2003 (WCRA) and therefore was prohibited from bringing a common law claim by s 237 of the WCRA, which operates as a gateway provision. (Greenall v Amaca Pty Ltd [2026] QSC 16).

Justice Smith reaffirmed the principle that damages should put the Plaintiff (or their estate) in the position that they would have been but for the injury ‘so far as money can do’. His Honour noted that, whilst reference to other decisions can assist to guide the Court in its assessment, it is the subjective experience of the Plaintiff, and not that of other parties or that of a ‘subjective norm’.

Nevertheless, jury awards assist the Court to understand community standards and perception of the value of pain and suffering. His Honour went on to note that to that end, there is a single common law in Australia and the experience of pain and suffering in Queensland is not to be distinguished from another state. Similarly, common law awards of damages in defamation and historical abuse matters can assist a court to understand community expectations.

Whilst not allowing the Plaintiff’s inability to continue to care for his wife as a separate head of damage, Justice Smith nevertheless allowed an ‘uplift’ of $80,000 to $100,000 based on the principles set out by the High Court in CSR v Eddy. His Honour ultimately allowed $420,000 for generally damages (inclusive of the uplift) with an additional $15,000 for loss of life expectancy.

Awards of general damages have traditionally varied from state to state, being lower on average in some states than others. This decision will likely result in plaintiff’s seeking more uniform awards of damages across the country; as well as across various types of claims (including defamation matters where damages awards are often higher), which may result in an overall upward trend in general damages awards.