Supreme Court of New South Wales

Part 2

Personal injury damages

Division 1 - Preliminary

9 - (Repealed)

10 - (Repealed)

11 - Definitions

In this Part:

injury” means personal injury and includes the following:

(a) pre-natal injury,

(b) impairment of a person’s physical or mental condition,

(c) disease.

personal injury damages” means damages that relate to the death of or injury to a person.


Osei v P K Simpson Pty Ltd [2022] NSWCA 13

On 7 March 2010 the appellant, Mr Osei, was assaulted while working as a taxi driver. Mr Osei sustained physical and psychological injury. Although Mr Osei’s claim for workers’ compensation was initially approved, the insurer ceased paying weekly compensation to Mr Osei in November 2011. Mr Osei filed three applications in the Workers Compensation Commission for reinstatement of weekly benefits. The first two applications were discontinued, and the third was settled. In 2019, Mr Osei sued his solicitor and barrister in the District Court claiming damages for negligent provision of legal services in connection with the settlement. The primary judge held that both were in breach of their duties of care to Mr Osei.

After applying deductions and a 40% discount to reflect the chance of Mr Osei not succeeding before the Workers Compensation Commission, the primary judge awarded $19,086.65 to Mr Osei. In a second judgment, the primary judge ordered that the costs payable by the solicitor and barrister be capped at $10,000: that was found to be the effect of cl 2 of Sch 1 of the Legal Profession Uniform Law Application Act 2014 (NSW) (“the LPULA Act”), which sets limits on the costs for legal services provided to parties to certain “personal injury damages” claims. Mr Osei sought leave to appeal that decision. The Court of Appeal granted leave to appeal and allowed the appeal in part.

On s 11: The trial judge erred in finding that the cap in cl 2 of Sch 1 of the LPULA Act applies because the definition of “personal injury damages”, contained in s 11 of the CLA and applying to the LPULA Act, should be interpreted to mean damages “for” personal injury, whereas the damages awarded to Mr Osei were for professional negligence: at [75], [94]. The words “relate to” in cl 2 of Sch 1 of the LPULA Act should be construed narrowly in the sense of “for” as opposed to connoting an indirect connection: [93].

NSWCA decisions cited in discussion:

Cross v Certain Lloyd’s Underwriters;

Thelander v Certain Lloyd’s Underwriters [2011] NSWCA 136

Firth v Sutton [2010] NSWCA 90

Firth v Sutton (No 2) [2010] NSWCA 109

State of New South Wales v Williamson [2011] NSWCA 183

High Court decisions cited in discussion:

Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56

New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57



11A - Application of Part

(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.

(2) This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(3) A court cannot award damages, or interest on damages, contrary to this Part.

(4) In the case of an award of damages to which Part 2A (Special provisions for offenders in custody) applies, this Part applies subject to Part 2A.


Fixing damages for economic loss
Fixing damages for non-economic loss (general damages)
Interest on damages
Third party contributions
Exemplary and similar damages
Structured settlements
Last updated:

23 Nov 2024

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