Guzman v Zammit
[2003] NSWCA 224
•15 August 2003
CITATION: Guzman v Zammit [2003] NSWCA 224 HEARING DATE(S): 02/07/03 JUDGMENT DATE:
15 August 2003JUDGMENT OF: Meagher JA at 1; Ipp JA at 17 DECISION: 1. Appeal allowed; 2. Judgment and verdict below set aside; 3. In lieu thereof verdict for the plaintiff in the sum of $327,442.00; 3. Order the respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act. CATCHWORDS: PERSONAL INJURY - Re-assessment of damages. PARTIES :
Guillermo Enrique Guzman
v
Joseph ZammitFILE NUMBER(S): CA 41007 of 2002 COUNSEL: A: I Guihot
R: M Elkaim SCSOLICITORS: A: Frisina & Associates
R: Ferguson Holz
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 912 of 2001 LOWER COURT
JUDICIAL OFFICER :Delaney J
CA 41007 of 2002
Friday, 15 August 2003MEAGHER JA
IPP JA
1 MEAGHER JA: This is an appeal by a plaintiff against the inadequacies of a judgment in his favour by Judge Delaney in the District Court. He was injured in a motorcar accident which took place on 4 May 1998. It was conceded that the accident was caused by the defendant’s breach of duty. His Honour heard and determined the question of the quantum of damages owing to the plaintiff. His Honour arrived at the figure of $223,674.02. The plaintiff alleges that his Honour should have arrived at the figure of $388,642.02. There was no question of contributory negligence.
2 His Honour’s figure of $223,674.02 consists of the following components:
(a) Non-economic loss $ 71,000.00
(30% of a most extreme case)
(b) Past medical expenses $ 20,174.02
(c) Future treatment $ 3,000.00
(d) Rehabilitation $ 2,000.00
(e) Past economic loss $ 25,000.00
(f) Future economic loss $102,500.00
3 Almost every component is challenged.
4 His Honour found that the plaintiff did suffer the injuries he claimed, and that they arose out of the accident which he claimed. In this respect, the plaintiff was supported by a substantial body of expert medical evidence. There was one medical expert who was adverse to him, a Professor Oakeshott, who almost opined that the claimed injuries did not exist, whom his Honour rejected on almost all points. However, his Honour was not entirely happy with the plaintiff, who, he said, seriously exaggerated his disabilities.
5 Having considered all the evidence and having made his findings as to credibility, his Honour found that the non-economic loss was 30% of a most extreme case. The plaintiff invited us to increase this to 35%. In view of the greatly discretionary delicacy of choosing the correct percentage figure, I do not see how this Court could possibly interfere on this point.
6 But the main point of the plaintiff’s case is the alleged inadequacy of his Honour’s findings on past and future economic loss. In endeavouring to analyse the plaintiff’s submissions on this point it is not easy to calculate what a correct result should be: there are various obfuscatory factors. In the first place, a number of fairly central points have not been determined; in the second place, even those facts which are fairly obviously correct are often ambivalent; and in the third place, I am ashamed to say, his Honour’s reasons are to some extent simply incomprehensible.
7 These difficulties manifest themselves most obviously when one comes to the plaintiff’s challenges to his Honour’s findings on past and future economic loss. The facts which seem to be relevant in this respect are: the plaintiff was born in Chile in 1963 and migrated to this country in 1987. From 1987 to 1992 he worked as an employed painter. In 1992 he commenced to work as a painter on his own account. There is no express finding as to why he took this step, but presumably it was because he thought it would be more remunerative. However, despite his best endeavours, his business did not prosper as it ought.
8 Then, in 1998, there occurred his accident, which caused much subsequent trouble in his right shoulder and arm. For the months following the accident he continued to carry on his work, although this was done with increasing difficulty, but sometimes with greater profit. His evidence, which there is no reason to disbelieve, is that it took him twice as long as usual to do anything. From this fact, confirmed as it was by the medical evidence, his counsel submitted that 50% of his capacity had been lost; and that seems to me to be a reasonable deduction.
9 And then, in mid 2000, things got to such a pitch that he abandoned painting altogether. There was, as I understand it, no criticism by his Honour of his decision to do so.
10 If one looks at the actual earnings of the plaintiff, one finds a scattering of figures which do not suggest any particular pattern.
11 On the basis of those figures, his Honour concluded, and it is hard to quarrel with the conclusion, that, unsatisfactory as the plaintiff’s job was, he earned in it from $200 to $350 a week. To put this in perspective, the evidence was that an employed painter would earn at least $600 a week.
12 Although his Honour made no explicit finding to this effect, it is, I think, fairly clear that, if there had been no accident, the plaintiff would have been driven by economic necessity back into the employed workforce.
13 All these considerations combine to suggest that the plaintiff should be re-compensated at the rate of $300 per week (i.e. 50% of $600). Instead, his Honour, apparently from sheer caprice, calculated his economic loss at the inexplicable figure of $160 per week.
14 For these reasons I would propose that, allowing the appeal, past economic loss ought to be $37,100 rather than $25,000, and future economic loss at $192,168 rather than $102,500.
15 The plaintiff’s counsel also submitted that the figure for future medicals ought to be $30,000 instead of his Honour’s figure of $3,000. It would not be unfair to say that the plaintiff was unable to point to any considerations which would lead to the acceptance of this submission. However, as the respondents concede that his Honour’s figure would not adequately compensate for the plaintiff’s future physiological treatment, I am of the view that $5,000 would be a more appropriate figure than $3,000.
16 I am therefore of the view that the following orders should be made:–
i. Appeal allowed;
ii. Judgment and verdict below set aside;
iii. In lieu thereof verdict for the plaintiff in the sum of $327,442.00;
iv. Order the respondent to pay the appellant’s costs of the appeal, and to have a certificate under the Suitors' Fund Act.
17 IPP JA: I agree with Meagher JA.
Last Modified: 08/28/2003
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