Mazengarb v Riseley - [1990] TASSC 21

Serial No 15/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Mazengarb v Riseley [1990] TASSC 21; A15/1990

PARTIES:  MAZENGARB, Maria
  v
  RISELEY, Justin Lewis Miles

FILE NO/S:  FCA 109/1989
DELIVERED ON:  1 June 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox, Underwood and Crawford JJ

Judgment Number: A15/1990
Number of paragraphs: 23

Serial No 15/1990
List "A"
File No FCA 109/1989

MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY

REASONS FOR JUDGMENT FULL COURT

COX J
UNDERWOOD J
CRAWFORD J
1 June 1990

Orders of the Court

Appeal allowed.

Judgment for $98,380.79 set aside and judgment for $73,380.79 substituted.

Serial No 15/1990
List "A"
File No FCA 109/1989

MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY

REASONS FOR JUDGMENT FULL COURT

COX J
1 June 1990

I agree with the reasons for judgment prepared by Underwood J The appeal should be allowed and the assessment of damages varied by reducing it by $25,000.00 to $73,380.79.
Serial No 15/1990
List "A"
File No FCA 109/1989

MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
1 June 1990

The learned trial judge assessed the respondent's damages as follows:

Pain, suffering and loss of amenities  $30,000.00
Future economic loss  $50,000.00
Future medication  $ 1,000.00
Griffiths v Kerkemeyer component  $ 1,120.00
Scheduled benefits paid by MAIB  $16,276.79
$98,380.79

On behalf of the appellant it was submitted that the amounts allowed for pain, suffering and loss of amenities and for "future economic loss" were manifestly excessive and that together, the sum of $80,000 allowed under those two heads of claim resulted in a judgment that was manifestly excessive. In the absence of specific error, learned counsel for the appellant accepted that, in order to succeed, it had to be shown that the award was "a wholly erroneous assessment of the damage suffered" (per Lord Wright in Davies v PowellDuffryn Associated Collieries Ltd [1935] 1 KB 354 at p360, approved in Gamser v Nominal Defendant (1976) 136 CLR 145 at p148) or that it was "grossly disproportionate to [the] injuries and consequences" (Planet Fisheries Pty Ltd v La Rosa& Anor (1969) 119 CLR 118 at p124).

On 14 June 1986 the respondent, then aged 18½, was injured when the car in which he was travelling as a back seat passenger, hit an HEC pole. He suffered a crush fracture to the first lumbar vertebrae with some encroachment into the lumbar canal but without spinal cord or nerve root compression. The fracture united and consolidated. By the following year there was radiological evidence of early degenerative change at and just above the fracture site. There was also evidence of Scheuermann's disease at T8, a pre–existing asymptomatic condition which appears to have no significance in the assessment of the respondent's damages.

After the accident, the respondent was taken by ambulance to the Royal Hobart Hospital where he remained as an in patient for three weeks. While in hospital, the respondent experienced extreme pain at and around the site of the fracture 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 Mazengarb v Riseley

Details

AGLC: Mazengarb v Riseley [1990] TASSC 21
Case: [1990] TASSC 21
Decision Date: 1 June 1990

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Mazengarb v Riseley involved an appeal by the appellant against a judgment awarding damages to the respondent. The Full Court comprised Cox, Underwood, and Crawford JJ. The appeal centred on the amount of damages awarded to the respondent, Justin Lewis Miles Riseley, following a car accident that resulted in a crush fracture to his first lumbar vertebrae. The trial judge had awarded damages totaling $98,380.79, which the appellant contested as being manifestly excessive.

The key legal issues revolved around whether the damages awarded for pain, suffering, loss of amenities, and future economic loss were excessive. The appellant argued that the award was a wholly erroneous assessment or grossly disproportionate to the injuries and consequences. The court had to determine if the damages were justified given the nature and extent of the respondent's injuries and the impact on his life.

The court found that while the award for pain, suffering, and loss of amenities was at the higher end of the scale, it was not disproportionate to the injury and loss sustained. However, the court held that the amount awarded for future economic loss was manifestly excessive. The court concluded that the respondent was entitled to compensation for the lost opportunity to earn income from manual work and diving, but the award of $50,000 for this loss was too high. The court reduced this amount by $25,000 to $25,000, bringing the total award to $73,380.79.

The appeal was allowed, and the judgment for $98,380.79 was set aside, substituting a judgment for $73,380.79. This decision reflected the court's careful consideration of the evidence and the respondent's future prospects, ultimately arriving at a more balanced and equitable assessment of damages.

Orders