Diamond v Simpson (No 1)

[2003] NSWCA 67

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Diamond v Simpson (No 1) [2003]  NSWCA 67

FILE NUMBER(S):
40962/01

HEARING DATE(S):               25/11/02; 26/11/02; 27/11/02; 28/11/02

JUDGMENT DATE: 07/04/2003

PARTIES:
Robert Diamond (Appellant)
Calandre Simpson by her Tutor William Charles Simpson (1st Respondent)
Trustees of the Sisters of St Joseph (2nd Respondent)

JUDGMENT OF:       Stein JA Ipp JA Young CJ in Eq   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          12791/87

LOWER COURT JUDICIAL OFFICER:     Whealy J

COUNSEL:
P L G Brereton SC and I Butcher (Appellant)
D F Jackson QC, L A Levy SC and Ms J L Lonergan (1st Respondent)
P Hall QC and S Woods (2nd Respondent)

SOLICITORS:
Blake Dawson Waldron (Appellant)
Turtons (1st Respondent)
Makinson & d'Apice (2nd Respondent)

CATCHWORDS:
DAMAGES- The approach to be adopted in determining an appeal from an assessment of damages in a personal injuries action- Relevance of an award being particularly high- Claims for gratuitous services rendered by a publicly or privately funded charitable institution- Application of principle of proportionality and reasonableness to various heads of damages. (D)

LEGISLATION CITED:

DECISION:
1.  Appeal allowed
2.  Order of Whealy J set aside except as to costs
3.  In lieu, verdict for the first respondent for $10,998,692
4.  Order that the first respondent repay to the appellant any sum already received over and above the amount referred to in order 3 plus interest at the court rate from the date of payment
5.  Order that the cross appeal be dismissed with costs
6.  Stand over the question of costs of the appeal to 9.15 am on 9 April 2003.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40962/01
SC 12791/87

STEIN JA
IPP JA
YOUNG CJ IN EQ

Monday 7 April 2003

ROBERT DIAMOND v CALANDRE SIMPSON by her Tutor WILLIAM CHARLES SIMPSON & 1 OR (NO 1)

FACTS
As a consequence of the appellant’s negligence during the delivery of the first respondent, the first respondent is severely disabled by athetoid cerebral palsy. All of the first respondent’s physical activities are affected by her disability. She therefore brought proceedings for damages against the appellant and the second respondent. Whealy J awarded total damages of $14,202,042, which was broken down into numerous heads of damages. The appellant, in this appeal, challenged various heads of damages. The first respondent also cross appealed against the disallowance of an amount claimed for a fund manager.

FINDINGS
The approach adopted by the Court of Appeal in determining the appeal (being an appeal from an assessment of damages in a personal injuries action) is that laid down in Harper v Bangalow Motors (unreported, NSWCA, 24 July 1990). The size of the aggregate sum awarded was very large and it was questioned whether its size should play any roled in the determination of the appropriateness of the total sum awarded. The mere fact, however, that the total award might be particularly high does not warrant an appellate court interfering with it: Pettersen…