Diamond v Simpson (No 1)

Case [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…

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AGLC
Diamond v Simpson (No 1) [2003] NSWCA 67
Case
[2003] NSWCA 67
Decision Date

CaseChat Overview and Summary

Diamond (the appellant) appealed to the Court of Appeal of New South Wales against an assessment of damages awarded to Simpson (the first respondent) in a personal injuries action. The dispute concerned the quantum of damages awarded to Simpson, particularly in relation to claims for gratuitous services provided by charitable institutions.

The Court of Appeal was required to determine the correct approach to assessing damages in a personal injuries claim, specifically considering the relevance of an award being particularly high. It also had to consider the principles applicable to claims for gratuitous services rendered by charitable institutions, and the application of the principles of proportionality and reasonableness to various heads of damages.

The Court of Appeal allowed the appeal, setting aside the original order of Whealy J except as to costs. It substituted a verdict for the first respondent for $10,998,692. The court ordered that the first respondent repay any sum received in excess of this amount, with interest. The cross-appeal was dismissed with costs, and the question of the costs of the appeal was stood over.

Orders

Orders of the court

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.

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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