Jackson v Mazzafero

Case [2012] NSWCA 170

Court of Appeal

New South Wales
Case Title: JACKSON v MAZZAFERO
Medium Neutral Citation: [2012] NSWCA 170
Hearing Date(s): 5 June 2012
Decision Date: 15 June 2012
Jurisdiction:
Before:

Macfarlan JA at [1]
Hoeben JA at [2 ]
Decision:

(1) Appeal allowed.
(2) The judgment of the primary judge in favour of the appellant in the amount of $173,707 is set aside.
(3) In lieu thereof judgment is entered in favour of the appellant in the amount of $228,998.72.
(4) The costs orders made by the primary judge on 10 February 2011 are set aside.
(5) In lieu thereof the respondents are to pay the appellant's costs of the trial.
(6) The respondents are to pay the appellant's costs of this appeal.

[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:

TORT - damages appeal - principles applicable to challenge to assessment of non-economic loss - adequacy of reasons for economic loss findings - difficulties created by a paucity of evidence as to economic loss - adequacy of buffer for future domestic assistance.
Legislation Cited:
Cases Cited:

Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Redding v Lee (1983) 151 CLR 117
Zheng v Cai [2009] HCA 52, 239 CLR 446
Texts Cited:
Category: Principal judgment
Parties:

Rosanne Jackson - Appellant
Saverio Mazzafero - First Respondent
Maria Mazzafero - Second Respondent
Vincenzo Mazzafero - Third Respondent
Rita Mazzafero - Fourth Respondent
Representation
- Counsel:

Counsel: 
Ms S Norton SC/Ms E Welsh - Appellant
Mr CT Barry QC/Mr J Sleight - Respondents
- Solicitors:

Solicitors:
Brydens Law Office - Appellant
Wotton & Kearney - Respondents
File number(s):

2009/335359
Decision Under Appeal
- Court / Tribunal:
- Before: McLoughlin DCJ
- Date of Decision: 06 September 2010
- Citation:
- Court File Number(s) 2009/2328
Publication Restriction:

JUDGMENT

  1. MACFARLAN JA: I agree with Hoeben JA.

  2. HOEBEN JA:

    Nature of proceedings
    By Statement of Claim filed 2 June 2009 the appellant sued the respondents for injury she received on 3 December 2007 when she fell in the entrance area of commercial premises owned by the respondents, fracturing her left wrist.

  3. In their Defence, the respondents admitted ownership of the premises and that they owed a duty of care to the appellant, but did not admit injury and loss and pleaded contributory negligence, intoxication and obvious risk.

  4. The matter was heard by McLoughlin DCJ on 6 - 7 September and 19 November 2010. His Honour handed down judgment on 10 February 2011. His Honour found in favour of the appellant and entered judgment for $173,707.

  5. The judgment was made…

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AGLC
Jackson v Mazzafero [2012] NSWCA 170
Case
[2012] NSWCA 170
Decision Date

CaseChat Overview and Summary

The appellant, Jackson, appealed to the Court of Appeal of New South Wales against the quantum of damages awarded by the primary judge in proceedings against the respondents, Mazzafero. The appellant challenged the assessment of damages for non-economic loss, past and future economic loss, future domestic assistance, and future out-of-pocket expenses. The appellant, a registered nurse, sustained a severely comminuted fracture of her left wrist in a fall on 3 December 2007, which led to a diagnosis of reflex sympathetic dystrophy.

The Court of Appeal was required to determine the principles applicable to a challenge to the assessment of non-economic loss, the adequacy of the reasons for findings regarding economic loss, the difficulties arising from a paucity of evidence concerning economic loss, and the adequacy of a buffer for future domestic assistance. The appeal also concerned the appropriate costs orders given the outcome of the appeal and the respondents' pre-trial offer of compromise.

Macfarlan and Hoeben JJA allowed the appeal, finding that the primary judge's assessment of damages was flawed. The Court determined that the primary judge's reasons for findings on economic loss were inadequate and that the difficulties in quantifying economic loss due to limited evidence should not prevent an appropriate award. The Court also considered the need for future treatment and domestic assistance.

Consequently, the Court of Appeal set aside the primary judge's judgment of $173,707 and entered judgment in favour of the appellant for $228,998.72. The costs orders made by the primary judge were also set aside, with the respondents ordered to pay the appellant's costs of the trial and the appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) The judgment of the primary judge in favour of the appellant in the amount of $173,707 is set aside.

(3) In lieu thereof judgment is entered in favour of the appellant in the amount of $228,998.72.

(4) The costs orders made by the primary judge on 10 February 2011 are set aside.

(5) In lieu thereof the respondents are to pay the appellant's costs of the trial.

(6) The respondents are to pay the appellant's costs of this appeal.

[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

The appellant appeals against the quantum of damages awarded by his Honour. Specifically, the appellant challenges the damages awarded under the following heads: Non-economic loss, past economic loss, future economic loss, future domestic assistance and future out-of-pocket expenses.Factual background The appellant was born in January 1950 and except for a short period in the 1970's when she was caring for her children, worked as a registered nurse for over 40 years. At the time of the accident, the appellant was divorced and living on her own in a three bedroom townhouse that had a small garden. The appellant commenced working in the orthopaedic ward at the Bankstown Hospital as a registered nurse in 1988. In 2007 the appellant was working 30 hours per week in that ward. Over the years she suffered some back injuries and developed an anxiety condition, particularly after the death of her mother in 2003. Despite this, the appellant remained in employment. In July 2007 she had a fall and fractured her right wrist. She went off work and did not return until October 2007. Upon her return to work, she was working 20 hours per week in the orthopaedic ward, but had negotiated with her employer to return to 30 hours per week in January 2008. On 3 December 2007 she had the fall which was the subject of these proceedings. She once again went off work. As a result of the fall, the appellant suffered a severely comminuted fracture of her left wrist which required internal and external fixation. The fixators were removed in January 2008. Thereafter the appellant was diagnosed with reflex sympathetic dystrophy (regional pain syndrome) in relation to her left wrist. This condition produced changes in temperature and colour and pain. The condition gradually resolved. The appellant became anxious and depressed about her situation, particularly with regard to whether or not she would be able to return to work. She underwent psychological treatment and was placed on medication which assisted her with her anxiety. By the date of the trial, his Honour found that her psychological difficulties caused by the fall had largely resolved. The appellant returned to work on 26 May 2008. Because she was unable to perform the heavy lifting work required in the orthopaedic ward, she was transferred to the neonatal ward. In the neonatal ward, the appellant worked 24 hours per week or 30 hours per week, depending on the roster. For approximately six months after the fall, the plaintiff received assistance in relation to her housework from a friend, Ms Zieba, and her daughter. At the time of trial, the appellant had engaged a commercial lawn mowing service because she was not able to perform that activity.Findings of trial judge His Honour accepted the appellant as a witness of truth. He found that had the injury to the appellant's left wrist not occurred, she would have returned to the orthopaedic ward, working 30 hours per week, in January 2008. He found that as a result of the injury to her left wrist, she was not able to return to work in the orthopaedic ward.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is a very difficult claim to quantify. The taking of analgesia and anti-inflammatory medication is only going to occur on an "intermittent" basis. The need to attend her general practitioner on a regular basis would also be caused by her other disabilities, which were unrelated to this fall. There is no evidence of her having undergone any physiotherapy in the past. Nevertheless, difficulties of calculation should not prevent the Court making an award of damages if the appellant is otherwise entitled to them. The need for such future treatment is consistent with the opinions of the other doctors. I propose to allow a figure of $5,000 which is the equivalent of $6 per week over the next 27 years.Conclusion It follows from the above analysis that I would allow the appellant's appeal and would award damages in favour of the appellant as follows: Since the damages now to be awarded in favour of the appellant exceed the Offer of Compromise made by the respondents before trial, the award at trial of indemnity costs in favour of the respondents also needs to be set aside. The orders which I propose are as follows:

Ratio Decidendi

Legal Principle Established

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