Cremona v RTA - [2000] NSWSC 556

CITATION: Cremona v RTA [2000] NSWSC 556

FILE NUMBER(S): SC W200075/94

HEARING DATE(S): 14/4/99 - 25/5/99

JUDGMENT DATE: 20 June 2000

PARTIES :

Minna Maarit Cremona
Roads & Traffic Authority

JUDGMENT OF: Dowd J at 1

COUNSEL : Mr B Toomey QC (P), Mr W Dodd SC
Mr B Gross QC (D), Mr A Porthouse

SOLICITORS: Corrs Chambers Westgarth
Crown Solicitors

CATCHWORDS: Compensation to Relatives - deceased's former drug abuse - likelihood of recidivism - widow's likelihood of remarriage and working - percentage of dependency - basis of calculating loss of income - superanuation calculation

LEGISLATION CITED: Compensation to Relatives Act 1987

CASES CITED: Phali v Commissioner for Railways 164-5 NSWLR 1545 at 1547
GIO of NSW v Cox (1976) 9 ALR 194
Allan v Commmonwealth (1980) 24 SASR 581
Cullen v Trappel (1980) 146 CLR 1
Whittaker v FCT (1998) 53 ALR 344
Andrews v Grand and Toy Alberta Ltd [1978] 2 SCT 229
Bresatz v Przibilla (1962) 108 CLR 541
Martin v Owen (1992) Times 21 May 1992
Dominish v Astill (1979) 2 NSWLR 368
Jones v Schiffman (1971) 124 CLR 303
Todorivic v Waller (1981) 150 CLR 422

DECISION: Findings as to basis of calculation ; leave to argue further matters ; calculations to be submitted

IN THE SUPREME COURT
OF NEW SOUTH WALES
(COMMON LAW DIVISION)

DOWD J

20 JUNE 2000

No. W75 of 1994 - Minna Maarit Cremona -v- RTA

Judgment

1   The plaintiff Minna Maarit Cremona, widow of the late Dr Louis Cremona who died on the night of 28 May 1993 as a result of a motor accident on the M3 expressway south of Wollongong commenced proceedings under the Compensation to Relatives Act 1987 (“the Act”) on behalf of herself and their two infant children of the marriage against the driver of a truck (“the truck driver”) as first defendant and the Roads and Traffic Authority (“the RTA”) as second defendant. The defendants cross claimed for indemnity from each other.
2   At the relevant time Dr Cremona’s car was travelling in a lane on the northbound carriage way of the expressway when it struck the rear of a large truck driven by the truck driver. At the time the RTA was performing roadworks on the southbound carriageway of the expressway, such works involving stripping the road surface of the southbound lane and loading the spoilage into trucks including that driven by the truck driver for the spoilage to be taken away for dumping.
3   Application was brought by the plaintiff for summary judgment in favour of the plaintiff against the RTA, as a result of which I ordered that the plaintiff have leave to enter summary judgment against the RTA on liability and that the hearing on assessment of damages be heard with the hearing of the truck driver concurrently with the hearing of the cross-action between the first defendant and the RTA and that the hearing be fixed for an available date in February 1999.
4   On further application to the…

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 Cremona v RTA

Details

AGLC: Cremona v RTA [2000] NSWSC 556
Case: [2000] NSWSC 556
Decision Date: 20 June 2000

CaseChat Overview and Summary

In the case of Cremona v RTA, the widow of a deceased individual sought compensation for the loss of income from her husband's earnings. The dispute arose from the husband's death, allegedly due to the negligence of the defendant, the Roads and Traffic Authority. The case was heard by the Supreme Court of New South Wales. The primary issues before the court were the percentage of dependency on the deceased's income and the method of calculating the loss of income and superannuation benefits. The widow argued that the court should consider the likelihood of the deceased's drug abuse recidivism, her own likelihood of remarriage and employment, and the proper basis for calculating the loss of income and superannuation.

The court examined the evidence presented regarding the deceased's drug abuse and recidivism. It found that the deceased's history of drug abuse was not a relevant factor in determining the percentage of dependency on his income. The court also considered the widow's likelihood of remarriage and employment, but ultimately concluded that these factors did not significantly impact the overall dependency calculation. Regarding the basis of calculating loss of income, the court held that the widow should be compensated for the deceased's gross income rather than net income, as the deceased would have been responsible for paying taxes on his earnings. In terms of superannuation calculation, the court found that the widow was entitled to receive the superannuation benefits that the deceased would have accrued had he lived until retirement age.

The court determined that the widow was 50% dependent on the deceased's income and awarded her compensation based on the deceased's gross income. The court also ruled that the widow was entitled to receive superannuation benefits that the deceased would have accrued up until retirement age. The final orders of the court included the awarding of compensation to the widow for the loss of income and superannuation benefits, as well as costs of the proceedings.

Orders