HWLE Lawyers advised and represented the Transport Accident Commission (TAC) in the successful appeal in Transport Accident Commission v Pastuch & Anor [2025] SASCA 120.

The decision marks the first occasion the Court of Appeal of South Australia has considered the changes to the Civil Liability Act 1936 (SA) (CLA) relating to assessment of damages of CTP claims in SA, since the introduction of the changes to the CTP scheme in 2013.

Facts

On 6 November 2016, Mr Pastuch was the driver of a prime mover towing a road train, travelling on the Eyre Highway in South Australia. Mr Brenton Kansy-Grosser, was driving a prime mover in the opposite direction, when a head-on collision occurred between the vehicles. Mr Kansy-Grosser’s vehicle veered off the road, exploded and became engulfed in flames. Mr Kansy-Grosser died as a result of the accident.

Mr Pastuch sustained serious injuries in the accident, including multiple fractures of the right arm, a fractured clavicle, injury to his coccyx, injuries to his back and neck, lacerations to his nose and generalised bruising. He also developed psychiatric injuries.

Mr Pastuch made a claim for damages in respect of his injuries sustained in the accident. Mr Pastuch’s wife, Samantha Lewis made a claim for loss of consortium.

Decision at first instance

Legal proceedings were commenced in the District Court of South Australia against the TAC, as the insurer of the deceased’s vehicle and the matter proceeded to a trial confined to an assessment of damages.

Liability was admitted, but with an agreement that the applicants’ damages were to be reduced by 25% for contributory negligence under section 49(3) of the CLA, because Mr Pastuch was not wearing a seatbelt at the time of the accident.

The parties agreed the applicable Injury Scale Value (ISV) prior to trial.

At first instance, the trial judge assessed damages to Mr Pastuch in the amount of $1,254,776 and $50,000 for Ms Lewis, which was reduced to $941,082 for Mr Pastuch and $37,500 for Ms Lewis, in addition to interest and costs.

Appeal

The trial judge’s decision was appealed by TAC to the Court of Appeal of South Australia.

The key issues on appeal were:

1. the award for past and future economic loss and the assessment of Mr Pastuch’s pre-accident and residual earning capacity;
2. the award for future paid or commercial care; and
3. the award for loss of consortium.

Past and future economic loss

The Court of Appeal found that the trial judge’s assessment of Mr Pastuch’s economic loss and awards for past and future economic loss were erroneously high and manifestly excessive.

In particular, the Court of Appeal accepted TAC’s arguments and found:

1. The trial judge erred in his assessment of Mr Pastuch’s pre-accident earning capacity by finding that Mr Pastuch was likely to have increased his working hours, but for the accident, which led to an inflated assessment of the applicant’s pre-accident future earning capacity. This was based on a misapprehension of the evidence as to Mr Pastuch’s family circumstances and financial circumstances.
2. The trial judge erred in his assessment of Mr Pastuch’s residual earning capacity. The trial judge made an allowance of only $60,000 to take into account Mr Pastuch’s residual earning capacity. Mr Pastuch’s residual earning capacity was confined to a nominal figure, which appeared to be based on the trial judge’s finding that Mr Pastuch was essentially unemployable. While the evidence showed that he was essentially unemployable, this did not mean that he had no residual earning capacity. In particular, Mr Pastuch had been able to work as a tow truck driver, and the evidence suggested this was beneficial to his wellbeing.

The Court of Appeal set aside the awards for past and future economic loss and reduced the award for past economic loss from $353,928 to $196,140 and the award for future economic loss from $718,045 to $420,913.

Future care

At first instance, the trial judge made an award of $63,750 for future paid or commercial services. This was challenged on appeal by TAC on the basis that the evidence established that Mr Pastuch was receiving care from his wife, of approximately 2 hours per week, but on a gratuitous basis.

Since the introduction of the amendments to the CLA as a result of the changes to the CTP scheme in 2013, section 58A of the CLA restricts persons injured in motor vehicle accidents from recovering damages for gratuitous services unless:

1. their ISV exceeds 10; and
2. the services are provided or to be provided:
   • for at least six hours per week (intensity threshold); and
   • for a period of at least six consecutive months (duration threshold).

Given that it was accepted that Ms Lewis was providing less than six hours per week of care from February 2020 onwards, the trial judge accepted that the ongoing threshold of six hours per week had not been met. The Court of Appeal considered it was appropriate that the Court proceed on the basis that the intensity threshold was an ongoing precondition to recovery for gratuitous services.

The Court of Appeal accepted TAC’s arguments and found that, in order for an injured person to recover damages for commercially provided services:

1. An injured person must establish more than an injury-related need for services.
2. The injured person must establish that they are likely to incur the cost of obtaining those services from a commercial provider, rather than relying upon them being provided gratuitously.
3. To permit a recovery without such a finding would be contrary to, or effectively undermine, the operation of section 58 of the CLA.
4. Where the injury-related need has previously been met through the provision of gratuitous services, recovery of an award for commercial services requires a finding that some or all of the gratuitous assistance provided in the past is likely, at some point, to become unavailable or otherwise be replaced by services obtained from a commercial provider.

The Court of Appeal set aside the award for future care and substituted an award of $25,000 for future care.

Loss of consortium

TAC also challenged the finding of an award of $50,000 for damages for loss of consortium.

The Court found that Mr Pastuch’s injuries and subsequent deterioration in ability to contribute to his relationship with Ms Lewis were not so severe as to justify the award for loss of consortium made by the trial judge.

Conclusion

The Court of Appeal (Livesey P, S Doyle and Bleby JJA) unanimously granted the appeal and entered substituted judgments reflecting reduced awards of $570,878 (from $941,082) for Mr Pastuch and $22,500 (from $37,500) for Ms Lewis.

Key Takeaways

The key takeaways of the decision are:

1. The decision confirms the principles governing the award of damages for loss of earning capacity. In assessing the injured person’s pre-accident future earning capacity, a Court should consider the most likely outcome or scenario for the injured person, absent the accident.
2. In assessing claims for future commercial care, these claims should be closely scrutinised to ensure that the claims are not an attempt to avoid the operation of section 56A of the CLA which restricts recovery of damages for gratuitous services, where injured persons have historically received assistance on a gratuitous basis.
3. In assessing claims for future commercial care, insurers should bear in mind that it is not sufficient for an injured person to establish that a need for services has been created, the injured person must also establish that they are likely to incur those costs from a commercial provider.
4. Whilst the award for loss of consortium was reduced, the award does reflect a higher amount than historically allowed by insurers for loss of consortium.

This article was written by Amanda Salleh, Partner, and Jessica Carnell, Special Counsel.