Reported Decision: (1999) Aust Torts Reports 81-581
New South Wales
Court of Appeal
CITATION: MARINKO v MASRI [1999] NSWCA 364 FILE NUMBER(S): CA 40460/98 HEARING DATE(S): 24 March 1999 JUDGMENT DATE:
5 October 1999PARTIES :
NEVILLE MARINKO & ANOR v ISSAM MASRIJUDGMENT OF: Priestley JA at 1; Handley JA at 4; Sheppard AJA at 60
LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 12383/93 LOWER COURT JUDICIAL OFFICER: Rolfe J
COUNSEL: A J Sullivan QC (appellants)
A J Leslie QC (respondent)SOLICITORS: Blake Dawson Waldron (appellants)
Paul A Curtis & Co (respondent)CATCHWORDS: DAMAGES - wife suffers permanent brain injury during abortion - nervous shock of husband - wife’s "estate" managed by Protective Commissioner under Protected Estates Act 1983 - wife awarded amounts for past gratuitous care and future care and management - husband principal carer - whether husband should claim payment from Protective Commissioner for amount awarded to wife for past voluntary services provided by the husband - whether failure to mitigate - whether "double dipping" in awards for past gratuitous care to wife and past economic loss to husband; DAMAGES - apportionment of past and future economic loss for nervous shock consequent on serious injury to wife - whether should have been made to reflect husband’s non compensable grief and depression; DAMAGES - whether carer’s benefit under Social Security Act and maintenance payments by Protective Commissioner should have been deducted from award for economic loss ACTS CITED: Protected Estates Act 1983
Compensation to Relatives Act 1897
Mental Health Act 1958
Social Security Act 1991CASES CITED: TCN Channel 9 v Hayden Enterprises Pty Limited (1989) 16 NSWLR 130
Driver v War Services Home Commissioner (1923) 44 ALT 130, 134
Re DJR & The Mental Health Act 1958 [1983] 1 NSWLR 557
CSR Limited v D'Arcy (1995) 40 NSWLR 721
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, 350
Rogers v Whittaker (1992) 175 CLR 479, 487, 488
The Liverpool [No 2] [1963] P 64, 82-3
Hodges v Frost (1984) 53 ALR 373
Griffiths v Kerkemeyer (1977) 139 CLR 161
O'Brien v Komesaroff (1982) 150 CLR 310, 319
The National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
Redding v Lee (1983) 151 CLR 117
Manser v Spry (1994) 181 CLR 428
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Commonwealth v McLean (1996) 41 NSWLR 389, 408-11
Schneider v Eisovitch [1960] 2 QB 430, 442
Hinz v Berry [1970] 2 QB 40 CA , 42-3, 44-5
Swan v Williams (Demoliton) Pty Ltd (1987) 9 NSWLR 172, 193-4
De Francheschi v Storrier (1998) 90 FLR 95, 101-2
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, 413, 416
Pham v Lawson (1997) 68 SASR 124, 152-3
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
DECISION: Appeal allowed in part - cross-appeal dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA…
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- AGLC
- Marinko v Masri [1999] NSWCA 364
- Case
- [1999] NSWCA 364
- Decision Date
CaseChat Overview and Summary
In *Marinko v Masri*, the plaintiff, Mr. Marinko, appealed a decision of the Supreme Court of New South Wales concerning damages awarded to him following a permanent brain injury sustained by his wife during an abortion. The wife's estate was managed by the Protective Commissioner under the *Protected Estates Act 1983*. The Supreme Court had awarded amounts to the wife for past gratuitous care and future care and management, with Mr. Marinko being the principal carer. The dispute on appeal concerned whether Mr. Marinko should claim payment from the Protective Commissioner for the amount awarded to the wife for past voluntary services he provided, whether there was a failure to mitigate, and whether there was "double dipping" in the awards for past gratuitous care to the wife and past economic loss to the husband. Further issues related to the apportionment of past and future economic loss for nervous shock consequent on his wife's injury, and whether carer's benefits and maintenance payments should have been deducted from the economic loss award.
The court was required to determine several key legal issues. Firstly, it had to consider whether the husband, as the principal carer, was entitled to claim payment from the Protective Commissioner for the portion of the damages awarded to his wife that represented his past gratuitous services. Secondly, the court needed to assess whether the husband had failed to mitigate his loss. Thirdly, it was to decide if the awards for the wife's past gratuitous care and the husband's past economic loss constituted impermissible "double dipping". Fourthly, the court had to determine if the apportionment of past and future economic loss for nervous shock should have reflected the husband's non-compensable grief and depression. Finally, the court was asked to consider whether carer's benefits under the *Social Security Act* and maintenance payments made by the Protective Commissioner should have been deducted from the award for economic loss.
The court allowed the appeal in part and dismissed the cross-appeal, setting aside the judgment of the Supreme Court, except as to costs. The court substituted a judgment for the plaintiff, comprising general damages including interest of $62,223.33 and past wage loss including interest of $258,700.00, with effect from 4 June 1998.
The court was required to determine several key legal issues. Firstly, it had to consider whether the husband, as the principal carer, was entitled to claim payment from the Protective Commissioner for the portion of the damages awarded to his wife that represented his past gratuitous services. Secondly, the court needed to assess whether the husband had failed to mitigate his loss. Thirdly, it was to decide if the awards for the wife's past gratuitous care and the husband's past economic loss constituted impermissible "double dipping". Fourthly, the court had to determine if the apportionment of past and future economic loss for nervous shock should have reflected the husband's non-compensable grief and depression. Finally, the court was asked to consider whether carer's benefits under the *Social Security Act* and maintenance payments made by the Protective Commissioner should have been deducted from the award for economic loss.
The court allowed the appeal in part and dismissed the cross-appeal, setting aside the judgment of the Supreme Court, except as to costs. The court substituted a judgment for the plaintiff, comprising general damages including interest of $62,223.33 and past wage loss including interest of $258,700.00, with effect from 4 June 1998.
Orders
Orders of the court
The following orders should be made:
(1) Appeal allowed in part, cross-appeal dismissed;
(2) Judgment of the Supreme Court, Common Law Division, set aside except as to costs;
(3) Substitute, with effect from 4 June 1998, judgment for the plaintiff comprising:
(a) general damages including interest $ 62,223.33
(b) past wage loss including interest $258,700.00
Background
Background to the litigation
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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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