(1) Appeal allowed. (2) Set aside the verdict and judgment, in the sum of $152,403.11, of Delaney DCJ of 16 April 2009. (3) Judgment for the respondent in the sum of $9,111.11. (4) The respondent to pay the appellant’s costs of the appeal. (5) The respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.
CATCHWORDS:
DAMAGES - motor vehicle accident - damages for commercial domestic assistance - gratuitous assistance currently provided - only slight chance of plaintiff needing commercial assistance as a result of injuries suffered in the accident - whether damages for commercial assistance warranted - Motor Accidents Compensation Act 1999, s128 - DAMAGES - future economic loss - loss of earning capacity - speculative possibility only of plaintiff having earned significant income but for the accident - whether damages for loss of capacity warranted
1 THE COURT: The respondent was injured in a motor vehicle accident which occurred on 24 November 2004. The appellant admitted liability for the accident. Accordingly, the hearing of an action brought by the respondent for damages proceeded as an assessment only. The issues which arise on this appeal relate to awards of damages made by the primary judge, Delaney DCJ, in respect of domestic assistance and past and future economic loss, as well as to a decision of his Honour to admit into evidence a statement of a prospective employer of the respondent.
2 The respondent was aged 61 at the time of the trial in 2008. He had qualified in Italy as an auto electrician before coming to Australia in 1970. His work history thereafter was chequered, as a result of injuries and illnesses which he suffered. He sustained a lower back injury at work in 1973 which continued to cause him lower back pain at the time of the subject accident, in November 2004. He suffered further injuries to his neck and back in motor vehicle…
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 Miller v Galderisi
Sign in free to access the full text
Details
AGLC
Miller v Galderisi [2009] NSWCA 353
Case
[2009] NSWCA 353
Decision Date
CaseChat Overview and Summary
In *Miller v Galderisi*, the Court of Appeal of New South Wales considered an appeal concerning damages awarded to the respondent following a motor vehicle accident. The primary dispute revolved around the extent to which the respondent was entitled to damages for both gratuitous domestic assistance and future economic loss, specifically loss of earning capacity.
The court was required to determine whether the trial judge erred in awarding damages for commercial domestic assistance when the assistance provided was gratuitous and there was only a slight chance of the respondent requiring such services commercially in the future. Furthermore, the court had to assess whether damages for loss of earning capacity were warranted, given that the prospect of the respondent having earned significant income but for the accident was merely speculative. The relevant legislation considered included section 128 of the *Motor Accidents Compensation Act 1999* (NSW).
The Court of Appeal found that the trial judge had erred in awarding damages for commercial domestic assistance. Applying the principles governing such claims, the court determined that the evidence did not support an award for future commercial assistance, as the likelihood of the respondent needing such services was too remote. Similarly, the court concluded that the claim for loss of earning capacity was also too speculative to warrant an award of damages.
Consequently, the appeal was allowed, and the original verdict and judgment in favour of the respondent were set aside. The judgment was varied to reflect a sum of $9,111.11 in favour of the respondent, and the respondent was ordered to pay the appellant’s costs of the appeal, with a certificate under the *Suitors’ Fund Act 1951* to be provided if the respondent qualified.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the verdict and judgment, in the sum of $152,403.11, of Delaney DCJ of 16 April 2009.
(3) Judgment for the respondent in the sum of $9,111.11.
(4) The respondent to pay the appellant’s costs of the appeal.
(5) The respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.