Paul James Geaghan (Appellant) Jennifer Beryl D'Aubert (Respondent)
JUDGMENT OF:
Handley JA at 1; Stein JA at 3; Foster AJA at 69
LOWER COURT JURISDICTION :
District Court
LOWER COURT FILE NUMBER(S) :
DC 82/99
LOWER COURT JUDICIAL OFFICER :
Phelan DCJ
COUNSEL:
J D Hislop QC/P J Gormly (Appellant) K P Rewell SC/M Kumar (Respondent)
SOLICITORS:
Stewart Cuddy & Mockler (Apellant) Stacks - The Law Firm (Respondent)
CATCHWORDS:
MOTOR VEHICLE ACCIDENT - quantum - assessment of damages - past and future domestic assistance - Griffiths v Kerkemeyer - construction of s 72 of the Motor Accidents Act 1988 - loss of earning capacity - whether Griffiths v Kerkemeyer includes the provision of care to an injured persons' pets or a hobby - statutory construction and interpretation generally - D
1. Appeal allowed. 2. The verdict and judgment in the District Court set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $61,879. 3. The trial judge's order that the appellant pay the respondent's costs of the trial on a solicitor/client basis from 13 May 1999 be set aside and in lieu thereof order that the appellant pay the respondent's costs of the trial in the District Court on a party/party basis. 4. The respondent is to pay the costs of the appeal but receive a certificate under the Suitors' Fund Act if otherwise entitled. 5. The cross-appeal dismissed with costs. 6. The respondent is ordered to repay the appellant by way of restitution the sum of $31,290 together with interest thereon at the relevant court rates.
CA 41021/00 DC 82/99
HANDLEY JA STEIN JA FOSTER AJA
Tuesday, 13 August 2002
GEAGHAN v D’AUBERT
Facts
The appellant, Paul James Geaghan, appeals against the award of past and future domestic assistance to the respondent (plaintiff), Jennifer Beryl D’Aubert, by Judge Phelan in the District Court. The respondent was injured in a motor vehicle accident in March 1998. The appellant admitted liability and his Honour found that no contributory negligence by the respondent had been established. His Honour entered a verdict and judgment for the respondent in the sum of $93,169 and ordered the appellant to pay the respondent’s costs on a solicitor and client basis.
The appeal concerns the…
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.
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Details
AGLC
Geaghan v D'Aubert [2002] NSWCA 260
Case
[2002] NSWCA 260
Decision Date
CaseChat Overview and Summary
In *Geaghan v D'Aubert*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning the assessment of damages following a motor vehicle accident. The primary dispute revolved around the quantum of damages awarded to the respondent, particularly in relation to claims for past and future domestic assistance and loss of earning capacity.
The court was required to determine whether the principles established in *Griffiths v Kerkemeyer* extended to compensation for the provision of care for the injured person's pets or for assistance with their hobbies. Furthermore, the court had to interpret the scope of section 72 of the *Motor Accidents Act 1988* (NSW) in light of these claims and consider the appropriate basis for awarding costs at trial.
The Court of Appeal allowed the appeal, setting aside the District Court's verdict and judgment. It substituted a new judgment for the respondent in a reduced sum of $61,879. The court also varied the costs order from the trial, directing that the appellant pay the respondent's costs on a party/party basis rather than a solicitor/client basis. The respondent was ordered to repay a portion of the awarded sum to the appellant, reflecting the adjustments made to the damages assessment. The cross-appeal was dismissed.
Orders
Orders of the court
1. Appeal allowed. 2. The verdict and judgment in the District Court set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $61,879. 3. The trial judge's order that the appellant pay the respondent's costs of the trial on a solicitor/client basis from 13 May 1999 be set aside and in lieu thereof order that the appellant pay the respondent's costs of the trial in the District Court on a party/party basis. 4. The respondent is to pay the costs of the appeal but receive a certificate under the Suitors' Fund Act if otherwise entitled. 5. The cross-appeal dismissed with costs. 6. The respondent is ordered to repay the appellant by way of restitution the sum of $31,290 together with interest thereon at the relevant court rates.