Joyce v Geelan - [2001] NSWCA 29

NEW SOUTH WALES COURT OF APPEAL

CITATION: Joyce v Geelan [2001] NSWCA 29

FILE NUMBER(S):
40314/99

HEARING DATE(S): 10 November 2000

JUDGMENT DATE: 02/03/2001

PARTIES:
John Lemuel Joyce (by his Tutor The Protective Commissioner of New South Wales) - Appellant
Heather Geelan - Respondent

JUDGMENT OF: Meagher JA Sheller JA Giles JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3203/97

LOWER COURT JUDICIAL OFFICER: Norton ADCJ

COUNSEL:
A S Morrison SC & J Dupree - Appellant
K J Kelleher - Respondent

SOLICITORS:
Graham Jones - Appellant
Ferguson Holz - Respondent

CATCHWORDS:
DAMAGES - challenges to various components of damages for personal injury - no question of principle. COSTS - defendant's offer of compromise - plaintiff obtained larger amount - on facts, no reason to order otherwise. ND

LEGISLATION CITED:

DECISION:
Appeal allowed. Damages to be recalculated in the light of the reasons. Short minutes to be brought in. Stood over for mention on 9 March 2001 for orders in accordance with the short minutes to be made and the costs of the appeal to be addressed.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40314/99
DC 3203/97

MEAGHER JA
SHELLER JA
GILES JA

Friday 2 March 2001

JOYCE v GEELAN

JUDGMENT

MEAGHER JA: I agree with Giles JA.
SHELLER JA: I agree with Giles JA.
GILES JA: The appellant was injured in a motor vehicle accident on 7 June 1990. Norton ADCJ found that the accident was caused by the negligence of the respondent, but that there was contributory negligence reducing her damages by 15 per cent. Damages were assessed at $913,852.32, made up as follows -
Non-economic loss   $155,400.00
Past care   $42,900.00
Future care   $284,404.00
Past economic loss   $143,397.46
Future economic loss   $250,560.00
Out-of-pocket expenses   $20,000.00
Future medical expenses   $9,327.05
Court Visitor costs    $11,807.30
Sub total   $917,795.81
Less 15 per cent   $780,126.43
Past superannuation   $4,819.17
Future superannuation   $22,021.72
Interest on past economic loss   $55,306.61
Interest on past superannuation   $1,280.39
Fund management     $50,298.00
Total   $913,852.32
The appellant had claimed case management costs, but her Honour’s reasons made no mention of them. They were either overlooked or refused. The respondent was ordered to pay the appellant’s costs, but an application that the costs be on an indemnity basis was refused.
On appeal the appellant challenged the awards for non-economic loss, past care, future care, future medical expenses and Court Visitor costs, and sought an award for case management costs. Successful challenge would bring a consequential recalculation or consequential recalculations. The appellant also challenged the refusal of costs on an indemnity basis.
Outline facts
The appellant was born on 19 March 1961, and was aged 29 at the time of the accident. He was educated to School Certificate level. Until January 1985 he had a chequered employment history, working as a spray painter, a storeman and packer, a lifeguard, a farm hand and in a pastry shop. There were periods of unemployment, of incarceration for possession and supply of marijuana and for unpaid traffic fines, and…

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.

Continue reading Joyce v Geelan

Details

AGLC: Joyce v Geelan [2001] NSWCA 29
Case: [2001] NSWCA 29
Decision Date: 2 March 2001

CaseChat Overview and Summary

The appellant, Joyce, appealed to the Court of Appeal against a decision of the trial judge concerning damages awarded for personal injury sustained in a motor vehicle accident caused by the respondent, Geelan. The appeal challenged specific components of the damages awarded, including non-economic loss, past and future care, future medical expenses, and Court Visitor costs, and sought an additional award for case management costs. The appellant also contested the trial judge's refusal to award costs on an indemnity basis.

The central legal issues before the Court of Appeal were whether the trial judge erred in her assessment of various heads of damages, and whether the appellant was entitled to costs on an indemnity basis. The appeal did not raise any novel questions of principle regarding damages, but rather concerned the application of established principles to the specific facts of the case. The trial judge had found that the appellant suffered severe and extensive brain damage as a result of the accident, which led to a significant loss of cognitive capacity, rendering him unable to return to his previous occupation and requiring ongoing supervision and care.

The Court of Appeal allowed the appeal, finding that the damages awarded by the trial judge required recalculation in light of the court's reasons. The court indicated that short minutes detailing the recalculated damages would be presented for its approval. The matter was subsequently stood over for mention to allow for the making of orders in accordance with these minutes and to address the costs of the appeal.

Orders

Orders of the court

Appeal allowed. Damages to be recalculated in the light of the reasons. Short minutes to be brought in. Stood over for mention on 9 March 2001 for orders in accordance with the short minutes to be made and the costs of the appeal to be addressed.

Background

Background to the litigation

On appeal the appellant challenged the awards for non-economic loss, past care, future care, future medical expenses and Court Visitor costs, and sought an award for case management costs. Successful challenge would bring a consequential recalculation or consequential recalculations. The appellant also challenged the refusal of costs on an indemnity basis.Outline facts The appellant was born on 19 March 1961, and was aged 29 at the time of the accident. He was educated to School Certificate level. Until January 1985 he had a chequered employment history, working as a spray painter, a storeman and packer, a lifeguard, a farm hand and in a pastry shop. There were periods of unemployment, of incarceration for possession and supply of marijuana and for unpaid traffic fines, and of what the trial judge described as trading in organic vegetables. The appellant attempted but failed a welding course, but successfully undertook a landscaping course and worked in landscaping businesses. In January 1985 the appellant began a pre-apprenticeship course, and in 1986 he began a carpentry course. He was successful in passing the subjects associated with a certificate in carpentry and joinery. There were more periods of unemployment and mixed employment, including as an encyclopaedia salesman, in cabinet making, as a driver, and ultimately in doing carpentry work. The government body supervising the appellant’s efforts thought him an average apprentice who worked diligently and to a reasonable standard. The trial judge accepted that after his incarceration and in particular after he began his carpentry course the appellant “was doing his best to get his life in order”. The appellant was struck by a car driven by the respondent when he was crossing the road. Issues at the trial included whether the appellant was affected by substance abuse at the time and whether he suddenly changed course and walked into the side of the respondent’s vehicle. The appellant’s undoubted history of substance abuse came up again in relation to his injuries. The appellant was taken to hospital after the accident, and was found to be drowsy and amnesic for the relevant events. He was noted as having abrasions to his left elbow, left thigh and chest wall. Investigation by CT scanning showed three intracerebral haematomas. The trial judge said that he suffered “some orthopaedic injury”, and noted that he had regularly complained of back pain to treating general practitioners. She said no more of these matters, and nothing was said of them in the appeal. The contest at the trial appears to have been over whether or not the appellant sustained organic brain damage as a result of the accident. The respondent accepted that the appellant had suffered a brain injury, but submitted that his post-accident cognitive deficiency was due to his use of marijuana and not to the brain injury. The trial judge found that the appellant had been “drug free” for some years prior to the accident, and that, while he had returned to using marijuana after the accident, he had done so because it helped alleviate his headaches. She considered that his cognitive impairment was not due to substance abuse, and accepted in particular the evidence of Dr Grant to the effect that it was the result of “severe and extensive brain damage”. In Dr Grant’s opinion the appellant had suffered a “significant loss of cognitive capacity”, his condition would not improve, he would not be able to return to his previous occupation, and he would continue to require some form of supervision and care.

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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