H G Shore (Appellant) M S Jacobs QC/A Kostopoulos (Respondent)
SOLICITORS:
Sparke Helmore (Appellant) Daniel Svir (Respondent)
CATCHWORDS:
Personal injury; motor vehicle accident; injuries obscured by subsequent events; inappropriate use of acceptance of respondent's credit ; retrial ordered.
DECISION:
Appeal allowed
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA40729/97 DC 4386/94
MASON P FITZGERALD JA
Tuesday, 15 June 1999
Domenica MAVIGLIA v Salvatore MAVIGLIA
JUDGMENT
1 MASON P: An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them. I also recognise that matters of causation are impressionistic where multiple causes contribute to a “final” position. (Here they included the respondent’s pre-accident degenerative spinal condition, the impact of the accident involving the appellant’s negligence, the death of Santarno and the impact of the later accident due to the respondent’s own negligence.) 2 This said, I agree with Fitzgerald JA that there must be a new trial as to damages. I agree with Fitzgerald JA’s reasons. 3 FITZGERALD JA: On 31 August 1991, shortly before her 49th birthday, the respondent was injured when a motor vehicle in which she was a passenger was involved in an accident. She sued the appellant in the District Court for damages for negligence. Liability was admitted. On 3 October 1997, when the respondent was aged 55 years, she was awarded damages of $315,000 and her costs. By this appeal, the appellant requests an order that damages be retried or reassessed by this Court. 4 The components of the respondent’s award of $315,000 damages were as follows:
(a) Non-economic loss limited in accordance with s79 of the Motor Accidents Act 1988 and calculated on the basis that the severity of the respondent’s non-economic loss is 44% of a most extreme case - $110,000; (b) Past economic loss - $ 53,000; (c) Future economic loss - $ 50,000; (d) Out of pocket expenses - $ 11,000; (e) Future medication - $ 5,000; (f) Future medical treatment - $ 3,000; (g) Loss of business - $ 8,000; (h) “Griffiths v Kerkemeyer” - $75,000.”
5 The respondent accepts that the award of $8000 for loss of business should be deducted, but contends that the appeal should otherwise be dismissed and that the appellant should be ordered to pay 95% of her costs. 6 The appellant accepts that the respondent is entitled to the sum of $11,000 awarded to her for out of pocket expenses, but contends that the respondent’s non-economic loss should be calculated on the basis of 20% of a most extreme case and reduced to $29,500,…
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
AGLC
Maviglia v Maviglia [1999] NSWCA 188
Case
[1999] NSWCA 188
Decision Date
CaseChat Overview and Summary
The appeal in *Maviglia v Maviglia* concerned a personal injury claim arising from a motor vehicle accident. The appellant, the plaintiff in the original proceedings, sought to overturn a decision made by the primary judge.
The central legal issue before the Court of Appeal was whether the primary judge had erred in accepting the respondent's credit, which led to a finding that the appellant's injuries were not caused by the accident but by subsequent events. This involved a critical assessment of the evidence presented and the weight given to the respondent's testimony regarding the appellant's condition after the accident.
Mason P and Fitzgerald JA found that the primary judge had made an inappropriate use of the acceptance of the respondent's credit. They reasoned that the judge had placed undue reliance on the respondent's evidence without adequately considering other available evidence that might have supported the appellant's claim. Consequently, the Court determined that a retrial was necessary to ensure a just determination of the appellant's injuries and their causation.
The appeal was allowed, and the matter was remitted for a new trial.