Brown v Falzari - [2001] TASSC 46

[2001] TASSC 46

CITATION: Brown & Anor v Falzari [2001] TASSC 46

PARTIES:  BROWN, Doug
  STATE OF TASMANIA
  v

FALZARI, Carol Grace

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 44/1999
DELIVERED ON:  24 April 2001
DELIVERED AT:  Hobart
HEARING DATES:  6 - 8 November 2000
JUDGMENT OF:  Underwood, Crawford and Evans JJ

CATCHWORDS:

Damages - Particular awards of general damages - Tasmania - Whiplash injury suffered by 38 year old nurse - Whether total or partial loss of earning capacity both before and after trial - Measurement of lost earning capacity - Award varied.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Appellants:  K E Read
             Respondent:  D J Gunson and K J Monaghan
Solicitors:
             Appellants:  Phillips Taglieri
             Respondent:  Gunson Pickard & Hann

Judgment Number: [2001] TASSC 46
Number of Paragraphs: 97

Serial No 46/2001
File No FCA 44/1999

DOUG BROWN and STATE OF TASMANIA v CAROL GRACE FALZARI

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
CRAWFORD J
EVANS J
24 April 2001

Orders of the Court

Appeal allowed.

Judgment for the plaintiff against the defendants varied by substituting the sum of $588,700 for the sum of $929,969

Serial No 46/2001
File No FCA 44/1999

DOUG BROWN and STATE OF TASMANIA v CAROL GRACE FALZARI

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
24 April 2001

The claim

At about 6.30am on 3 January 1985, the respondent was in an accident on the junction of Davey and Barrack Streets, Hobart. She was on her way to work at the Repatriation Hospital. She had driven up Barrack Street and was crossing Davey Street when the first appellant drove up Davey Street on her left, failed to stop at the red light and smashed into the passenger side of the respondent's car. The respondent immediately felt pain in her cervical spine, right shoulder, right arm and right knee. She went home instead of going to work.

About two days later, the respondent returned to work, but was troubled by pain in her neck and soreness in her shoulders. Despite a cervical fusion at C5/6 on 20 November 1985 and many other subsequent procedures, the respondent continued to suffer from pain in her neck and shoulder with tingling and weakness in the right arm. She also claimed that the accident caused the onset of chronic depression and that, together, the physical and psychological deficits destroyed her earning capacity.

At the time of the accident the respondent was aged 38 years, married and without children. She was a registered nurse with several post graduate qualifications. She was then halfway through an external studies course to attain a degree in nursing administration. The learned trial judge found:

"The plaintiff was competent in her work, had obtained specialist and tertiary qualifications and was likely to continue in her career until retirement. It is probable that she would have obtained a more senior administrative position."

The respondent commenced proceedings against the appellants to recover damages. She claimed that the first appellant's tortious…

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.

Continue reading Brown v Falzari

Details

AGLC: Brown v Falzari [2001] TASSC 46
Case: [2001] TASSC 46
Decision Date: 24 April 2001

CaseChat Overview and Summary

The case of Brown v Falzari was an appeal brought by the defendants against a judgment in damages awarded to the plaintiff, Carol Grace Falzari, following a motor vehicle accident that occurred on 3 January 1985. The trial judge had assessed the damages for the plaintiff at $929,969, which the defendants considered to be excessive. The appeal was heard by the Supreme Court of Tasmania Full Court, consisting of Underwood, Crawford, and Evans JJ. The court found that the original damages award was indeed excessive and varied the judgment sum from $929,969 to $588,700.

The key legal issues the court had to decide included whether the trial judge had erred in assessing the plaintiff's past and future lost earning capacities, and whether the trial judge had properly applied the principle in Fox v Wood when calculating the damages for the plaintiff's lost earnings. The court also considered whether the trial judge had erred in awarding certain future expenses claimed by the plaintiff.

In its judgment, the court found that the trial judge had erred in several respects. Firstly, the trial judge had incorrectly assessed the plaintiff's past lost earning capacity, as he had failed to take into account the periods during which the plaintiff had retained some earning capacity. The court also found that the trial judge had not properly applied the principle in Fox v Wood when calculating the damages for the plaintiff's lost earnings, and had made errors in assessing certain future expenses.

The court reassessed the damages for lost earning capacity and future expenses, taking into account the correct evidence and the appropriate legal principles. The court ultimately varied the judgment sum from $929,969 to $588,700, reflecting the proper assessment of the plaintiff's damages. The court also varied the individual heads of damages, resulting in a reduction in the awards for lost earning capacity, future medical expenses, and future lost earning capacity.

In conclusion, the Supreme Court of Tasmania Full Court found that the original damages award in the case of Brown v Falzari was excessive and varied the judgment sum to $588,700. The court identified several errors in the trial judge's assessment of the plaintiff's damages, and reassessed the damages based on the correct evidence and legal principles.

Orders