Malec v Hutton

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Citation: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 554-7 [14.130] or here


Background facts

  • The Plaintiff [Malec] was an employee of the Defendant's [Hutton].
  • He contracted a disease called brucellosis.
  • That disease can also lead to depression and back problems, which he did end up developing.
  • As a result, he could not work anymore
  • However, the court found that there was a 60% chance of the back problems/depression happening anyways, without the disease.

Legal issues


  • Past losses, which have happened already, are a matter of fact and therefore the court decides them on a balance of probabilities - this means if there's over 50% chance that it happened because of the injury, then the plaintiff can recover for it.
  • However, future things are decided in this 'all or nothing' method.
  • Rather, damages for future losses are awarded according to the probability - if there was a probability of 40% that the future loss will be sustained as a result of the injury, than the plaintiff will be able to recover 40% of the damage.
    • "Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."


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