Cupac v Cannone - [2014] NSWDC 16

District Court

New South Wales

Medium Neutral Citation: Cupac v Cannone [2014] NSWDC 16
Hearing dates: 17/03/14 - 19/03/14
Decision date: 21 March 2014
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
Judgment for the plaintiff in the sum of $266,361.82

Catchwords: Assessment of damages
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Fox v Wood (1981) 148 CLR 438
Category: Principal judgment
Parties: Bore Cupac (Plaintiff)
Robert Cannone (Defendant)
Representation: P Frame (Plaintiff)
J Guihot (Defendant)
NSW Compensation Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2011/00018240
Publication restriction: No

Judgment

The plaintiff was born in 1966. He is now 47 years of age. On 13 February 2007 he was involved in a motor vehicle accident. He was a passenger in a vehicle which struck the defendant's vehicle.

The plaintiff alleges that he was injured in the accident and that the injuries were caused by the negligence of the defendant. The defendant has admitted that he was negligent. He has not admitted that any of the injuries suffered by the plaintiff were caused by his negligence.

The matter is governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The plaintiff has claimed damages under the following heads: past and future medical expenses, past and future economic loss (including lost superannuation benefits) and future commercial care. The plaintiff is not entitled to non-economic loss because he has not exceeded the threshold set by Section 131 of the MACA.

The plaintiff's case is that the injuries he suffered in the motor accident have continued to affect him to the present time and will do so well into the future. He said there has been very little improvement to any of his injuries since the accident.

The defendant's case was that the plaintiff's damages are very limited and restricted to a closed period after the accident, certainly not extending beyond 2007. The defendant's approach was that the plaintiff had exaggerated and also been somewhat devious, for example seeking out a general practitioner who would be more lenient in providing off work certificates.

The plaintiff's background

The plaintiff was born in Croatia. He is married and has two children, now aged 10 and 14 respectively. The plaintiff attended school until he was 18 or 19 years of age. He learned some welding at school. After he left he spent about two years working on his home farm and doing some stone digging. He finally found a job doing welding but this was interrupted by the outbreak of hostilities in the former Yugoslavia. The plaintiff was called up for compulsory military service. He refused. He was placed in gaol. After some time he agreed to serve in the army but later left for Serbia as a refugee. He did some formwork in Serbia.

There is a history to a Dr Dixon that refers to the plaintiff doing welding and construction work for six years in Libya. This seems to be a mistake.

The plaintiff came to Australia in September 2001.…

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 Cupac v Cannone

Details

AGLC: Cupac v Cannone [2014] NSWDC 16
Case: [2014] NSWDC 16
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of Cupac versus Cannone involved a dispute over the assessment of damages for a personal injury claim. The plaintiff, Cupac, sought compensation for injuries sustained in a motor vehicle accident caused by the defendant, Cannone. The matter was heard and determined in the Supreme Court of New South Wales. The primary issue before the court was the appropriate calculation of damages, with particular focus on the economic and non-economic losses incurred by the plaintiff.

The court needed to address the quantum of damages awarded for past and future economic losses, including lost income and medical expenses, as well as non-economic damages for pain and suffering. The plaintiff argued for a higher assessment of damages, citing extensive medical treatments and ongoing disability, while the defendant contested the valuation, suggesting that the amounts claimed were excessive. The court considered expert evidence and medical reports, along with the plaintiff's personal circumstances and the nature of the injuries.

In delivering judgment, the court found that the plaintiff's claims for economic losses were substantiated by the evidence presented. The court accepted the plaintiff's expert's assessment of future medical expenses and lost earning capacity. For non-economic damages, the court found that the plaintiff had suffered significant pain and impairment of enjoyment of life, warranting a substantial award. After evaluating all submissions and evidence, the court determined that the appropriate total compensation for the plaintiff was $266,361.82. This amount reflected both the quantifiable economic losses and the subjective non-economic impacts of the injury.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $266,361.82

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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Medium Neutral Citation:	Cupac v Cannone [2014] NSWDC 16
Hearing dates:	17/03/14 - 19/03/14
Decision date:	21 March 2014
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Judgment for the plaintiff in the sum of $266,361.82
Catchwords:	Assessment of damages
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Fox v Wood (1981) 148 CLR 438
Category:	Principal judgment
Parties:	Bore Cupac (Plaintiff) Robert Cannone (Defendant)
Representation:	P Frame (Plaintiff) J Guihot (Defendant) NSW Compensation Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2011/00018240
Publication restriction:	No