Mr Millington drove through a red light and hit a garbage truck. His insurer admitted as much. It also accepted liability entirely. And it admitted that the garbage truck’s owner had incurred repair costs and associated losses of almost $50,000. But it baulked at paying that amount in damages.
So the garbo sued.
Millington’s insurer defended. It argued that the garbo’s claim was based on GST-inclusive amounts such as the total of the repairer’s invoice. As a business, the insurer reasoned, the garbage collector should inevitably get a GST input credit for one eleventh of such GST-inclusive totals and hence the true ultimate cost to the garbo was only ten-elevenths (i.e. the GST-exclusive amount) of the amounts that the garbo was claiming in court.
The plaintiff garbo dug in. It answered that while it was entitled to a GST input credit for the GST in the repair bill etc, it did not intend actually claiming that credit. And besides, even if it was to claim the GST input credit, why should it be out-of-pocket for the period between paying the GST-inclusive repair bills etc and the taxman’s subsequent allowance of the input credit from those bills?
The Supreme Court and the Magistrates’ Court gave different answers.
At first instance, the Magistrates’ Court ordered the defendant to pay the plaintiff the GST-inclusive total claim but it also ordered that the plaintiff subsequently refund to the defendant an amount equal to the GST content of the claim.
The defendant (or rather Mr Millington’s insurer in his name) then appealed to the Supreme Court.
The decision was handed down last month in Millington v Waste Wise Environmental Pty Ltd  VSC 167. Ironically, by the time the appeal got to the Supreme Court, the parties had actually agreed that the appeal should succeed but Croft J. applied the brakes. He observed that superior courts could not simply overturn inferior court orders by consent of the parties so he required submissions from the parties and allowed the involvement of an amicus curiae.
The appeal had three grounds.
Firstly, the Millington camp contended that the magistrate’s orders for separate payments in opposite directions offended the “once and for all” rule for damages awards. Croft J. agreed (although he noted a certain elasticity in that rule at the conclusion of a review of authorities which he characterised as tending to muddy already opaque waters).
Secondly, the appellant argued that the magistrate’s orders offended the compensatory principle (i.e. the object of an award of damages is to provide a sum of money the effect of which is to place the party who was injured in the same position they would have been in if they had not sustained the wrong for which they are being compensated). Again Croft J. agreed (although in obiter he noted the possibility that interest on a GST input might be properly claimable for the period the plaintiff was out of pocket for that amount).
Finally, the appellant argued that the magistrate was wrong when he adopted the view that the plaintiff was under a positive duty to mitigate its loss. Once more Croft J. agreed. “No such positive duty [to mitigate loss] exists,” he said. However “… the correct application of the law relating to the mitigation of loss in this instance requires that that the award of damages be reduced to the extent that [the plaintiff] has not acted reasonably in claiming the input credits to which it was entitled.”
The lessons from this case? Three occur to me:
- The financial measure of a defendant’s liability will often vary (plus or minus approximately 10 per cent) depending on the GST status of the particular plaintiff;
- The “duty to mitigate loss” might be a technical mis-description but that is probably of little practical significance. The broad underlying concept that plaintiffs cannot recover damages for losses they have incurred unreasonably remains alive and well; and
- If even garbage trucks need to be careful when approaching green lights at intersections the rest of us need to be very cautious indeed.
(Thanks to my friend and colleague Sam Hopper for pointing this case out to me after noticing that one of the authorities cited in it was the matter in which we first met.)