Londos v Amaca Pty Limited [2017] NSWDDT 7 saw a claim for economic loss is that because the claimant will die early from his disease, he has lost the receipt of the Commonwealth age pension for his “lost years”. The legal issue in the case was whether or not such a loss is compensable (at [7]).

The trial judge reviewed Australian and English authorities on  the point (starting at [129]) and at [139] noted that such a loss has never been awarded in this Tribunal, or in any of the courts of this state, or until recently, in any Australian courts.

The trial judge concluded that such a claim was not available (at [180] – [183]):

There is no authority in Australia, binding upon this Tribunal, that loss of the ability to receive an age pension is a head of damages. The age pension is received without reference to the ability of a person to earn income, or without reference to whether there has been some interference with any ability to earn income.

While the compensatory principle applies, it applies to various heads of damage for which the law provides compensation. There are three categories of such loss, referred to in the earlier cases, and collected in CSR v Eddy. The categories are:

  • Pain and suffering and loss of enjoyment of life – what the common law calls general damages;
  • Out-of-pocket expenses – in a case such as the present the medical expenses incurred and the attendant care services provided;
  • Loss of or interference with earning capacity which is or may be productive of financial loss.

Damages are not awarded simply because the compensatory principle is satisfied. That overarching principle is the one which is to be applied in assessing damages which are available as recognized heads of damage at common law.

In my view the claim for loss of a pension is not available as a matter of law and no damages are allowed for that claim.

Similar issues were considered in Dib v Amaca Pty Limited [2017] NSWDDT 6, with the same outcome at [170].

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