DENEZIN Pty Limited (in Liquidation) v Guiseppe Joseph De Martino

[1999] NSWCA 205

CITATION:	DENEZIN PTY LIMITED (IN LIQUIDATION) v Guiseppe Joseph DE MARTINO [1999] NSWCA 205
FILE NUMBER(S):	CA 40500/98
HEARING DATE(S):	26 May 1999
JUDGMENT DATE:	25 June 1999
PARTIES :	DENEZIN PTY LIMITED (In Liquidation) v Guiseppe Joseph DE MARTINO
JUDGMENT OF:	Meagher JA at 1; Stein JA at 2; Fitzgerald JA at 21

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 11812/92
LOWER COURT JUDICIAL OFFICER:	Barr J

COUNSEL:	C.T. Barry QC/G.F. Butler (Appellant) M.J. Cranitch SC/E.E. Welsh (Respondent)
SOLICITORS:	P.W. Turk & Associates (Appellant) Glover & Glover (Respondent)
CATCHWORDS:	PERSONAL INJURY - industrial - damages - past and future economic loss - past and future domestic assistance - costs of funds management of the verdict moneys
ACTS CITED:	n/a
CASES CITED:	Sharman v Evans (1977) 138 CLR 563 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 GIO v Rosniak (1992) 27 NSWLR 665
DECISION:	Appeal dismissed with costs; Cross-Appeal allowed with costs; Verdict and judgment for the respondent of $829,193.76 entered by Barr J set aside and a new verdict for the respondent in the sum of $872,150.76 substituted

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40500/98
CLD 11812/92
MEAGHER JA
STEIN JA
FITZGERALD JA

Friday, 25 June 1999

DENEZIN PTY LIMITED (In Liquidation) v Giuseppe Joseph DE MARTINO
The respondent was injured in a fall at his workplace on 18 September 1988 and sued his employer, the appellant, for damages. The respondent was a third-year apprentice carpenter whose duty on the day of the accident was to remove wooden formwork from a flight of concrete stairs that had been poured on the previous day.

Barr J entered a verdict in the respondent’s favour in the amount of $829,193.76.

On appeal , it was argued that:

1. His Honour’s award of damages for past and future economic loss were excessive.
2. His Honour’s award of damages for past and future domestic assistance were excessive.

On cross-appeal, it was argued that his Honour failed to properly assess the respondent’s entitlement to damages for funds management of the verdict moneys.

Held:

His Honour’s findings on past and future economic loss, and past and future domestic care were open on the evidence and should not be disturbed.

In respect of the Cross-Appeal, whilst his Honour had made proper allowance for establishment fees of funds management of the verdict moneys, he failed to make proper allowance for the ongoing costs associated with the administration of the fund.

ORDERS

1. Appeal dismissed with costs.

2. Cross-Appeal allowed with costs.

3. Verdict and judgment for the respondent of $829,193.76 entered by Barr J set aside and a new verdict for the respondent in the sum of $872,150.76 substituted.


IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40500/98
CLD 11812/92
MEAGHER JA
STEIN JA
FITZGERALD JA

Friday, 25 June 1999

DENEZIN PTY LIMITED (In Liquidation) v Giuseppe Joseph DE MARTINO
JUDGMENT

1    MEAGHER JA: I agree with Stein JA.
2    STEIN JA:

Introduction:

3    The appellant (Denezin Pty Limited (In Liquidation)) challenges the quantum of a verdict given by Barr J in favour of the respondent, Giuseppe De Martino. His Honour found a verdict in the sum of $829,193.76 arising out of an industrial accident on 18 September 1988 which severely injured the respondent. 4    The following elements of the award are brought into issue by the appellant:

(a) Past economic loss - His Honour allowed $171,871.20 and the appellant submits that this should be reduced to $104,935.47.

(b) Future economic loss - His Honour allowed $341,802.00 and the appellant submits that it should be reduced to $98,742.80 or, at the most, $216,474.60.

(c) P ast domestic assistance - His Honour allowed $96,774 and the appellant submits that it should be reduced to $35,069.88.

(d) Future domestic assistance - His Honour allowed $118,730 and the appellant submits that it should be reduced to $23,746.00 on the basis of 2 hours per week.

5    Barr J awarded $14,000 for the costs of funds management of the verdict moneys. The court gave leave to the respondent to cross-appeal against this award. The respondent submits that his Honour should have allowed $56,957.00. Although equivocally, the appellant argued that even the sum of $14,000 should not have been awarded.

Past Economic Loss

6    The attack on the trial judge’s assessment of past economic loss centres around his Honour’s statement that:

… I have not taken the whole of the fruit barn wage, because that job was not a permanent job but a subsidised introductory job through the Commonwealth Rehabilitation Service. Such jobs do not always lead to offers of permanent employment.

7    This is said to be in error, it being contended that the job was not subsidised. Although the evidence is far from clear, this submission appears to be correct. That this is so is supported by the apparent concession made by Counsel for the respondent. 8    However, his Honour went onto say:

… Even if that had happened, the respondent would because of his disabilities have been at a severe disadvantage in competing with other employees and potential employees for work and for the continuation of work. Those circumstances reduced his capacity to earn. [Emphasis added]

9    In my opinion, this conclusion was open to his Honour and provides a basis for his assessment of past wage loss. The respondent had an obviously reduced capacity to earn and his Honour’s approach to the evidence was reasonable one. It was open to find that the Fruit Barn employment was not comparable when reference is made to the medical evidence. What his Honour said about subsidised employment does not vitiate his conclusion. The award for past economic loss should not be disturbed.

Future Economic Loss

10    The complaint of the appellant with respect to future economic loss is his Honour’s reduction from $234.00 net per week earned at present to $100 net per week. It is said that there was no proper basis for such a reduction. The appellant submits that $550 per week (accepted as the comparable) less $266.88 per week, viz. $285.00 per week, is the maximum that should have been awarded. 11    It may first be noted that there is no real basis for concluding that the respondent presently earns $266.88 per week. The respondent is employed casually and works variable weekly hours. Therefore, his fortnightly pay varies. The figure urged by the appellant was one-half of the last fortnight’s pay. An averaging is a proper method to approach the calculation and it seems agreed (even adopted by the appellant in one of his submissions) that $234 per week is the correct figure. 12    However, the appellant again relies on the respondent’s earnings at the Fruit Barn which, it suggests, takes the difference closer to the order of $130 per week. 13    I do not believe that the appellant’s submission should be accepted. His Honour found that if the respondent’s employer were to run into bad times, the respondent would be the first to be put off. If this occurred, the respondent would be seriously disadvantaged in competing for work and his chances of obtaining employment again would be negligible unless he was lucky enough to find a sympathetic and enlightened employer as his present one. 14    Again, the trial judge’s findings were borne out by the evidence, see in particular Mr Leembruggen, Mr Aves and Mr Jovic. The discount made by his Honour was one which was reasonable, bearing in mind the evidence of the respondent’s continuing disabilities. The judge’s findings and conclusion on future economic loss were open on the evidence and should not be disturbed.

Past Domestic Assistance

15    There is no challenge to the amounts awarded up until September 1990. However, a challenge is made to the finding of 10 hours per week until January 1993 and 15 hours per week from February 1993 until the trial. It is submitted that his Honour’s reasons do not demonstrate how the hours were arrived at. The appellant suggests that the hours include his wife’s companionship and this is not allowable. Further, there was no evidence to support the increase to 15 hours per week in 1993. The ‘touchstone’ of reasonableness for Griffiths v Kerkemeyer had been exceeded, see Sharman v Evans (1977) 138 CLR 563. 16 However, there was ample evidence from the respondent’s wife (and mother before her) of the care necessary to be provided to the respondent. The ‘need’ established by this evidence was more than companionship. Ten hours per week for the period from September 1990 to January 1993 does not appear to be excessive or unreasonable. Thereafter, allowing for 1 hour reading to the respondent each day, seen by the respondent’s speech therapist as necessary and of benefit, was not unreasonable. The care found necessary by his Honour is also supported by the evidence of Dr Grant. I can see no proper basis to disturb his Honour’s finding on past domestic care and assistance.

Future Domestic Care

17    His Honour awarded 10 hours per week. The appellant submits that there was no basis for this and no room on the evidence for the operation of the principle in Griffiths v Kerkemeyer. If that be wrong, then 2 hours per week is said to be a proper reflection of the respondent’s needs. 18    I do not think that we ought interfere with his Honour’s finding. Given the evidence of the respondent’s mother, his wife and Dr Grant (to the effect that the respondent’s condition will likely deteriorate as he grows older), 10 hours per week was not an excessive or unreasonable finding. This is particularly so since it is assumed to include an element of reading supported by Ms Fernando. I would also dismiss this challenge. As a result the appeal should be dismissed.

Cross-Appeal - Funds Management

19    It appears to be common ground that his Honour erred on the issue of the award for funds management. It was an error to treat it as sufficient that the appellant had put the respondent into a position of having to arrange for the management of a far greater sum than he might ordinarily have had responsibility for (Red AB 44). This is insufficient according to the test in Nominal Defendant v Gardikiotis (1996) 186 CLR 49. 20 What is clear from the evidence, and from his Honour’s remarks, is that there was a need for funds management. Clearly the respondent was incapable because of his disabilities of managing his own affairs, particularly a sum such as the verdict. There was ample evidence to this effect which, it appears, was accepted by his Honour, see for example, Mr Rawling, as well as Dr Grant. The respondent submits that in assessing the entitlement to the expenses of fund management, his Honour took the first step set forth in GIO v Rosniak (1992) 27 NSWLR 665 (at 699) but not the second. In other words he allowed establishment fees but not the ongoing costs of administration of the fund for the years to come. I accept the respondent’s submission. Further, it seems to me that the costs and fees suggested by the Protective Commissioner are appropriate to be utilised. The substituted figure should be $56,957. The Cross-Appeal should be allowed and the respondent’s verdict be increased to $872,150.76.

Orders

1. Appeal dismissed with costs.

2. Cross-Appeal allowed with costs.

3. Verdict and judgment for the respondent of $829,193.76 entered by Barr J set aside and a new verdict for the respondent in the sum of $872,150.76 substituted.

21    FITZGERALD JA: I agree with Stein JA.

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