Posted on 18 June, 2021 19 June, 2021 by Stephen Warne
Latest on damages for distress in professional liability claims
A judge of the Supreme Court's Professional Liability List has awarded the plaintiffs $25,000 each (being the sum claimed by them) for the distress caused to them by the wrongful conduct of their financial advisers, on top of pecuniary damages. Matthews AsJ said in Williams v Nugara [2021] VSC 331:
'51 As a further head of compensatory damages, the Williamses seek $25,000 each in general damages for mental anguish, stress, anxiety, personal insecurity and distress. These are also to be assessed against the position the Williamses would have been in had the money remained in the Colonial Superannuation Funds.
52 It is worth citing the evidence of Mr Williams in full in this regard. While Mr Williams puts his evidence in quite a subdued and limited fashion, the substantial burden placed on the Williamses by the conduct of Mr Nugara and Skynet is clear:[40]
[40] Second Williams Affidavit, [4] – [8].
4. Our involvement with Rio and the Second Defendant have created immense stress and hardship. The loss of our retirement savings has been difficult to come to terms with and our distress further exacerbates as we move closer to retirement age.
5. Jennifer and I engaged Rio as our financial advisor with the hopes of creating financial freedom for ourselves and to establish a comfortable retirement. We placed our trust and our future in what we believed was expert investing advice from a professional financial advisor.
6. This experience has resulted in:
(a) Almost five (5) years of being unable to contact Rio;
(b) Ongoing stress as we have no idea where our funds were or how they were being utilised; and
(c) Ongoing fear of going into retirement without our hard-earned superannuation.
7. Rio's actions have caused significant stress and anxiety upon our lives. We have lost sleep and have felt psychological pressure in our daily lives moving towards retirement age.
8. As a result of Rio's actions, we have been left without funds for our retirement and face financial difficulty for the remainder of our lives.
53 The Plaintiffs relied on the decision of Mandie J in Newman v Financial Wisdom Ltd[41] for the proposition that compensation for mental anguish and distress of this sort could be awarded in cases of negligence and statutory misleading or deceptive conduct.[42] I accept that this is so in respect of statutory misleading or deceptive conduct.[43]
[41] [2004] VSC 216 ('Newman').
[42] Newman, [618] – [623].
[43] In respect of such claims under the ACL, see McLennan v Meyer Vandenberg [2020] ACTCA 7, [96] (per curiam) and cases cited there.
54 I also accept that such general damages are available for tortious deceit.[44]
[44] Giller v Procopets [2008] VSCA 236, [427] (Neave JA, Ashley JA agreeing).
55 In respect of mental anguish and distress occasioned by negligence, the Plaintiffs' claim is barred by provision of the Wrongs Act 1958 (Vic) which did not apply at the time of the conduct the subject of Newman.[45] However, as the Plaintiffs' claim under this head can be sustained under their other causes of action it is not necessary to address this point further.
[45] See especially sections 67, 73 and 74 Wrongs Act 1958 (Vic).
56 It has been said that damages for distress are recoverable pursuant to tortious deceit and misleading or deceptive conduct only if they are 'reasonably foreseeable'.[46] It is certainly reasonably foreseeable in the circumstances of the present case that, as a result of Mr Nugara's conduct, the Williamses would suffer considerable distress, disappointment and fear. Mr Nugara did not negligently invest the Williamses' life savings; rather, he took them and did not apply them to the Investment, and put them beyond the reach of the Williamses. His conduct was deliberately deceitful and designed to deprive the Williamses of their life savings to his own benefit. It is therefore eminently foreseeable that such conduct would cause the Williamses to suffer considerable distress, disappointment and fear.
[46] Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445, [116].
57 General damages such as damages for distress are 'at large' and to be assessed with respect to the injury suffered by the Williamses.[47] Regard may be had to previous cases of a similar kind in which damages for distress have been awarded, however those cases do not establish a norm or standard by which awards of damages must be fixed.[48] Rather, 'each case must be assessed according to the distress and disappointment which a person has suffered, and having regard to all of the facts and circumstances which are proved for that individual'.[49]
[47] Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733, [912] – [913] (Garling J) ('Moore'), upheld by the High Court in Moore v Scenic Tours Pty Ltd [2020] HCA 17.
[48] Moore, [914] – [916]; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, [11] (per curiam); Rogers v Nationwide News Ltd (2003) 216 CLR 327, [69] (Hayne J).
[49] Moore, [913].
58 I have had regard to the case of Newman, in which Mandie J in 2004 awarded between $10,000 and $25,000 in general damages for distress suffered by investors due to the economic loss suffered as a result of the defendant's negligent and misleading or deceptive conduct.[50] Newman is relevant not only because it concerned similar causes of action in the context of financial services provided to relatively unsophisticated and trusting plaintiffs, but because in many cases the plaintiffs' distress was exacerbated by the fact that their funds were lost when they were in or approaching retirement, and the funds reflected a loss of their lifesavings upon which they had depended.
[50] Newman, [629], [635] ,[640], [648] ,[655], [662], [667], [683], and [690].
59 I was not referred to any other case in which distress resulting from pure economic loss was compensated by an award of general damages. I have not had significant regard to awards of general damages for distress in other contexts, including awards of general damages for distress or disappointment for breach of contract or general damages for distress, pain and suffering resulting from physical or psychiatric injury. Those cases proceed on different footings and raise different kinds of compensable mental harm to the harm in this case, and are of limited value in considering the relationship between the harm in this case and the award of damages it attracts.
60 The distress caused to the Williamses by Mr Nugara's conduct is significant, and cannot be addressed by a token amount. Mr Nugara's conduct deprived the Williamses of their life savings as they approached retirement, and put the Williamses through considerable stress, fear and anxiety as they grappled with their future without those savings. The fact that the Williamses later recovered a substantial part of their savings from the Second and Third Defendant is highly relevant, and offsets the degree of ongoing distress suffered by the Williamses. Nonetheless, the distress suffered remains significant and, in my view, warrants the award of the full amount sought of $25,000 to each of the Williamses.'
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Categories"professional negligence", Accountants and auditors, Negligence
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