Basha v Vocational Capacity Centre Pty Ltd - [2009] NSWCA 409

New South Wales

Court of Appeal

CITATION: Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409

HEARING DATE(S): 16 November 2009

JUDGMENT DATE:
15 December 2009

JUDGMENT OF: Tobias JA at 1; McColl JA at 2; McClellan CJ at CL at 130

DECISION: 1. Cross appeal dismissed with costs. 2. Appeal allowed with costs. 3. Set aside the primary judge’s awards in respect of non-economic and economic loss. 4. Parties to file Short Minutes of Order in the Registry setting out the award to the appellant including interest as appropriate within seven days.

CATCHWORDS: TORTS – negligence – breach of duty – appellant sustained aggravation of shoulder injuries during vocational assessment conducted by respondents – respondents on notice of appellant’s recent shoulder surgery – whether breach of duty in proceeding with assessment rather than postponing it - DAMAGES – personal injuries – non-economic loss – whether assessment of 20 per cent of most extreme case inadequate – review of primary judge’s assessment as to severity of non-economic loss – Civil Liability Act 2002 (NSW), s 16 - DAMAGES – personal injuries – whether assessment of past and future economic loss inadequate - DAMAGES – personal injuries – domestic assistance – whether statutory threshold satisfied – Civil Liability Act 2002 (NSW), s 15

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Carolyn Basha v Vocational Capacity Centre Pty Ltd & Anor, (District Court of New South Wales, unreported, Garling DCJ, 19 December 2008)
Cranssen v R [1936] HCA 42; (1936) 55 CLR 509
Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v Bradley [2003] NSWCA 81
Khan v Polyzois [2006] NSWCA 59
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
North Sydney Council v Lygon 302 Pty Ltd (1995) 87 LGERA 435
Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247
Sydney Water Corporation v Turano [2009] HCA 42;(2009) 83 aljr 1168
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Woolworths Ltd v Lawlor [2004] NSWCA 209
Wynn Tresidder Management v Barkho [2009] NSWCA 149
Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156

PARTIES: Carolyn June Basha - Appellant and Cross-Respondent
Vocational Capacity Centre Pty Ltd - First Respondent and First Cross-Appellant
David Verhagen - Second Respondent and Second Cross-Appellant

FILE NUMBER(S): CA 40084 of 2009

COUNSEL: S Norton SC with S P Brennan - Appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Basha v Vocational Capacity Centre Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 409
Decision Date: 15 December 2009

CaseChat Overview and Summary

The appellant, Basha, appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning damages awarded for personal injuries. The dispute arose from vocational assessment services provided by the respondent, Vocational Capacity Centre Pty Ltd, during which the appellant sustained an aggravation of pre-existing shoulder injuries. The respondent was aware of the appellant's recent shoulder surgery prior to conducting the assessment.

The Court of Appeal was required to determine whether the respondent breached its duty of care to the appellant by proceeding with the vocational assessment despite having notice of the appellant's recent shoulder surgery, and whether this breach caused the aggravation of the appellant's injuries. Further issues concerned the adequacy of the primary judge's assessment of damages, specifically regarding non-economic loss, past and future economic loss, and whether the statutory threshold for domestic assistance was satisfied under the *Civil Liability Act 2002* (NSW).

The Court allowed the appeal, finding that the primary judge had erred in assessing damages for non-economic and economic loss. The reasoning involved a review of the evidence concerning the severity of the appellant's non-economic loss and the assessment of past and future economic loss, as well as the application of section 15 of the *Civil Liability Act 2002* (NSW) to the claim for domestic assistance. The cross-appeal by the respondent was dismissed.

Consequently, the Court set aside the primary judge's awards for non-economic and economic loss and ordered that the parties file Short Minutes of Order within seven days, detailing the revised award to the appellant, including appropriate interest. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Cross appeal dismissed with costs. 2. Appeal allowed with costs. 3. Set aside the primary judge’s awards in respect of non-economic and economic loss. 4. Parties to file Short Minutes of Order in the Registry setting out the award to the appellant including interest as appropriate within seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
HEARING DATE(S):	16 November 2009
JUDGMENT DATE:	15 December 2009
JUDGMENT OF:	Tobias JA at 1; McColl JA at 2; McClellan CJ at CL at 130
DECISION:	1. Cross appeal dismissed with costs. 2. Appeal allowed with costs. 3. Set aside the primary judge’s awards in respect of non-economic and economic loss. 4. Parties to file Short Minutes of Order in the Registry setting out the award to the appellant including interest as appropriate within seven days.
CATCHWORDS:	TORTS – negligence – breach of duty – appellant sustained aggravation of shoulder injuries during vocational assessment conducted by respondents – respondents on notice of appellant’s recent shoulder surgery – whether breach of duty in proceeding with assessment rather than postponing it - DAMAGES – personal injuries – non-economic loss – whether assessment of 20 per cent of most extreme case inadequate – review of primary judge’s assessment as to severity of non-economic loss – Civil Liability Act 2002 (NSW), s 16 - DAMAGES – personal injuries – whether assessment of past and future economic loss inadequate - DAMAGES – personal injuries – domestic assistance – whether statutory threshold satisfied – Civil Liability Act 2002 (NSW), s 15
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130 Carolyn Basha v Vocational Capacity Centre Pty Ltd & Anor, (District Court of New South Wales, unreported, Garling DCJ, 19 December 2008) Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jones v Bradley [2003] NSWCA 81 Khan v Polyzois [2006] NSWCA 59 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 North Sydney Council v Lygon 302 Pty Ltd (1995) 87 LGERA 435 Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247 Sydney Water Corporation v Turano [2009] HCA 42;(2009) 83 aljr 1168 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139 Wong v R [2001] HCA 64; (2001) 207 CLR 584 Woolworths Ltd v Lawlor [2004] NSWCA 209 Wynn Tresidder Management v Barkho [2009] NSWCA 149 Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156
PARTIES:	Carolyn June Basha - Appellant and Cross-Respondent Vocational Capacity Centre Pty Ltd - First Respondent and First Cross-Appellant David Verhagen - Second Respondent and Second Cross-Appellant
FILE NUMBER(S):	CA 40084 of 2009
COUNSEL:	S Norton SC with S P Brennan - Appellant…