Cupac v Cannone

Case [2015] NSWCA 114

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Cupac v Cannone [2015] NSWCA 114
Hearing dates:27 March 2015
Decision date: 06 May 2015
Before: Macfarlan JA at [1];
Meagher JA at [2];
Sackville AJA at [3]
Decision:

1. Appeal dismissed.
2. The appellant pay the respondent’s costs of the appeal.

Catchwords: MOTOR ACCIDENTS COMPENSATION – assessment of damages – appellant injured in motor vehicle accident – conflicting expert medical opinions - whether primary judge erred in assessing past and future economic loss - whether primary judge erred in assessing residual earning capacity – whether error in not considering inflation rate - whether primary judge failed to provided adequate reasons
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 126, 131
Cases Cited: Ainsworth v Ainsworth [2002] NSWCA 130
Cupac v Cannone [2014] NSWDC 16
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonanno [2008] NSWCA 253
Manly Municipal Council v Skene [2002] NSWCA 385
Pettitt v Dunkley [1971] 1 NSWLR 376
State Forests of New South Wales v Dinnerville [2004] NSWCA 127
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Category:Principal judgment
Parties: Bore Cupac (Appellant)
Robert Cannone (Respondent)
Representation:

Counsel:
DE Baran (Appellant)
PJ Deakin QC / J Guihot (Respondent)

Solicitors:
NSW Compensation Lawyers (Appellant)
Moray & Agnew Lawyers (Respondent)
File Number(s):2014/110676
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
Cupac v Cannone [2014] NSWDC 16
Date of Decision:
21 March 2014
Before:
Elkaim SC DCJ
File Number(s):
2011/00018240

Judgment

  1. MACFARLAN JA: I agree with Sackville AJA.

  2. MEAGHER JA:   I agree with Sackville AJA.

  3. SACKVILLE AJA: The appellant was injured in a motor vehicle accident on 13 February 2007. The respondent admitted that he had been negligent, but not that his negligence caused any of the appellant’s injuries. The primary Judge (Elkaim SC DCJ) assessed damages in the sum of $266,361.82 and entered judgment for the appellant in that amount: Cupac v Cannone [2014] NSWDC 16 (Primary Judgment).

  4. It was common ground at the trial that the appellant was not entitled to compensation for non-economic loss because his degree of permanent impairment as a result of the injury was not greater than 10 per cent: Motor Accidents Compensation Act 1999 (NSW) (MAC Act) s 131. The parties were, however, very much at issue as to other heads of damage claimed by the appellant, in particular past and future economic loss. As the primary Judge noted (at [42]) the appellant claimed over $1 million, while the respondent asserted that the appellant’s claim was worth less than the workers compensation payments of $77,000 he had apparently already received.

  5. The primary Judge assessed damages under the following heads (at [122]):

Past economic loss

$183,050.00

Past superannuation benefits

$20,135.50

Fox v Wood

$8,566.80

Future economic loss

$66,600.00

Future superannuation benefits

$9,324.00

Out of pocket expenses

$35,328.11

Future medical expenses

$4,906.20

Future commercial assistance

$3,000.00

Total:

$330,910.61

After deduction…

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AGLC
Cupac v Cannone [2015] NSWCA 114
Case
[2015] NSWCA 114
Decision Date

CaseChat Overview and Summary

The appeal in *Cupac v Cannone* concerned the assessment of damages for injuries sustained by the appellant in a motor vehicle accident. The primary judge had made findings regarding past and future economic loss and the appellant's residual earning capacity, which the appellant challenged on appeal.

The central legal issues before the Court of Appeal were whether the primary judge had erred in assessing the appellant's past and future economic loss, in determining the appellant's residual earning capacity, and in failing to consider the impact of inflation on the damages awarded. The appellant also argued that the primary judge had failed to provide adequate reasons for the decision.

The Court of Appeal found no error in the primary judge's assessment of economic loss or residual earning capacity. The court held that the primary judge had properly considered the conflicting expert medical evidence and had provided sufficient reasons for preferring one opinion over another. The court also determined that the primary judge was not required to explicitly consider inflation in the absence of specific evidence or argument on the point.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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