Grosso v Deaton - [2012] NSWCA 101

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Grosso v Deaton [2012] NSWCA 101
Hearing dates: 3 February 2012
Decision date: 20 April 2012
Before: McColl JA at [1]; Basten JA at [5]; Young JA at [48]
Decision:
(1) Allow the appeal and set aside the judgment and orders in the District Court.
(2) Judgment for the appellant against the respondent in the sum of $413,670, such amount to be paid into court in the first instance, to be apportioned as to:
(a) $187,100 in favour of Joshua Grosso; and
(b) $219,200 in favour of Lachlan Davis.
(3) The respondent to pay the appellant's costs in the District Court and in this Court.
(4) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal.
(5) Grant the parties leave to approach the duty judge in the Common Law Division on 7 days' notice for orders as to the disbursement of the fund.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DAMAGES- Compensation to Relatives Act- single mother of two killed in motor vehicle accident- two sons subsequently resided with their respective fathers- whether the sons had suffered compensable loss- compensable loss is material loss as at the moment of death- entire family situation before and after death compared- additional care provided by a surviving parent after the death may be taken into account to offset the loss but not gratuitous services provided by other family and friends.
Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59, 60
Compensation to Relatives Act 1897, s 4
Deserted Wives and Children Act 1901
Family Law Act 1975 (Cth), ss 66B, 66C
Infants' Custody and Settlements Act 1899
Motor Accident Compensation Act 1999, ss 3, 128, 142
Uniform Civil Procedure Rules 2005, r 51.53
Cases Cited: Axiak v Pezzano [2002] NSWCA 65; 13 MVR 424
Baker v Dalgleish Steam Shipping Co [1921] 3 KB 481
Bazeley v Forder (1868) LR 3 QB 559
Chantler v Chantler (1906) 6 SR (NSW) 412
De Sales v Ingrilli [2002] HCA 52; [2003] HCA 16; 212 CLR 338
Henderson v Oswald [1965] WAR 54
Horton v Byrne (1956) 30 ALJ 583
Houareau v Bouyer (1990) Aust Torts Reports 81-044
The King v Henrietta L Greenhill (1836) 4 Ad & El 624; 111 ER 922
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Marsh v Absolum [1940] NZLR 448
Nguyen v Nguyen [1990] HCA 9; 169 CLR 245
NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668
Rawlinson v Babcock & Wilcox…

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

Case: [2012] NSWCA 101
Decision Date: 20 April 2012

CaseChat Overview and Summary

In *Grosso v Deaton*, the Court of Appeal of New South Wales considered an appeal concerning damages awarded under the *Compensation to Relatives Act*. The case involved the death of a single mother of two sons in a motor vehicle accident. Following her death, the sons resided with their respective fathers. The central dispute revolved around whether the sons had suffered a compensable loss.

The primary legal issue before the Court of Appeal was to determine the nature of compensable loss under the *Compensation to Relatives Act* in the context of the deceased's children. Specifically, the court had to consider whether the loss was to be assessed as a material loss at the moment of death, and how the overall family situation, both before and after the death, should be taken into account. The court also had to determine the extent to which additional care provided by a surviving parent could offset the loss, and whether gratuitous services from other family and friends were relevant.

The Court of Appeal reasoned that compensable loss under the Act is a material loss assessed as at the moment of death. It held that the entire family situation, both before and after the death, must be compared to ascertain this loss. While acknowledging that additional care provided by a surviving parent after the death could be taken into account to offset the loss, the court clarified that gratuitous services provided by other family members and friends were not to be considered.

The Court of Appeal allowed the appeal, setting aside the judgment and orders of the District Court. It entered judgment for the appellant against the respondent in the sum of $413,670, to be paid into court for apportionment between the two sons. The respondent was ordered to pay the appellant's costs in both the District Court and the Court of Appeal, and was granted a certificate under the *Suitor's Fund Act 1951* (NSW) in respect of the appeal costs. Leave was granted for the parties to approach the duty judge for orders regarding the disbursement of the fund.

Orders

Orders of the court

(1) Allow the appeal and set aside the judgment and orders in the District Court.

(2) Judgment for the appellant against the respondent in the sum of $413,670, such amount to be paid into court in the first instance, to be apportioned as to:

(a) $187,100 in favour of Joshua Grosso; and

(b) $219,200 in favour of Lachlan Davis.

(3) The respondent to pay the appellant's costs in the District Court and in this Court.

(4) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal.

(5) Grant the parties leave to approach the duty judge in the Common Law Division on 7 days' notice for orders as to the disbursement of the fund.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Grosso v Deaton [2012] NSWCA 101
Hearing dates:	3 February 2012
Decision date:	20 April 2012
Before:	McColl JA at [1]; Basten JA at [5]; Young JA at [48]
Decision:	(1) Allow the appeal and set aside the judgment and orders in the District Court. (2) Judgment for the appellant against the respondent in the sum of $413,670, such amount to be paid into court in the first instance, to be apportioned as to: (a) $187,100 in favour of Joshua Grosso; and (b) $219,200 in favour of Lachlan Davis. (3) The respondent to pay the appellant's costs in the District Court and in this Court. (4) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal. (5) Grant the parties leave to approach the duty judge in the Common Law Division on 7 days' notice for orders as to the disbursement of the fund. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DAMAGES- Compensation to Relatives Act- single mother of two killed in motor vehicle accident- two sons subsequently resided with their respective fathers- whether the sons had suffered compensable loss- compensable loss is material loss as at the moment of death- entire family situation before and after death compared- additional care provided by a surviving parent after the death may be taken into account to offset the loss but not gratuitous services provided by other family and friends.
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58, 59, 60 Compensation to Relatives Act 1897, s 4 Deserted Wives and Children Act 1901 Family Law Act 1975 (Cth), ss 66B, 66C Infants' Custody and Settlements Act 1899 Motor Accident Compensation Act 1999, ss 3, 128, 142 Uniform Civil Procedure Rules 2005, r 51.53
Cases Cited:	Axiak v Pezzano [2002] NSWCA 65; 13 MVR 424 Baker v Dalgleish Steam Shipping Co [1921] 3 KB 481 Bazeley v Forder (1868) LR 3 QB 559 Chantler v Chantler (1906) 6 SR (NSW) 412 De Sales v Ingrilli [2002] HCA 52; [2003] HCA 16; 212 CLR 338 Henderson v Oswald [1965] WAR 54 Horton v Byrne (1956) 30 ALJ 583 Houareau v Bouyer (1990) Aust Torts Reports 81-044 The King v Henrietta L Greenhill (1836) 4 Ad & El 624; 111 ER 922 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Marsh v Absolum [1940] NZLR 448 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 Rawlinson v Babcock & Wilcox…