Osborne, J.C. v Geuna, M - [1988] FCA 797

Re: JASON CHARLES OSBORN and PATRICIA ANNE OSBORN
And: MIRTA GEUNA
No. ACT G15 of 1988
Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Gallop(1) and Spender(1) JJ.

CATCHWORDS

Damages - appeal against quantum - whether damages awarded for general damages, future wage loss and domestic services excessive - no new question of principle

Damages - future wage loss - usual and preferable means of calculation - relevance of residual capacity and vicissitudes of life

Damages - domestic services - appropriate method of calculation

Todorovic v. Waller (1981) 37 ALR 481

Traecey v. Churchill (1980) 1 NSWLR 442

Hodges v. Frost (1984) 53 ALR 373

Griffiths v. Kerkemeyer (1977) 139 CLR 161

HEARING

CANBERRA

#DATE 20:12:1988

Counsel and Solicitors for Applicant: Mr B. Sully QC and Mr S. Wilcox

Instructed by: Messrs Deane Deane & Nutt

Counsel and Solicitors for Respondents: Mr B. Maguire QC and Mr R. Williams

Instructed by: Messrs Minter Ellison

ORDER

The appeal be allowed;

The award of damages in the sum of $265,180.00 be set aside and in substitution therefor the sum of $184,580.00 be awarded to the plaintiff; and

The plaintiff pay the defendants' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal by the unsuccessful defendants against an award of damages in favour of the plaintiff in the Supreme Court of the Australian Capital Territory. The plaintiff's claim was for personal injuries sustained in a motor vehicle accident on 7 October 1984. Liability was in issue and the learned trial judge resolved that issue in favour of the plaintiff. He awarded damages in the sum of $265,180.00 composed of the following heads of damages -

General Damages $50,000.00

Past wage loss $36,000.00

Future wage loss $111,850.00

Domestic services $47,750.00

Loss of superannuation $3,000.00

Pharmaceuticals $1,600.00

Interest $14,980.00

TOTAL $265,180.00

The defendants have appealed to this Court against the sums awarded for general damages, future wage loss, and domestic services with consequential adjustment to the amount awarded for interest.
General Damages
The plaintiff was born in Argentina on 27 May 1946. She married in Argentina and there are four children of the marriage, Roxanna born in 1966, Alexander born in 1967, Veronica born in 1971 and Maximilian born in 1978.
The trial judge found that the plaintiff's substantial injury was in the cervical spine at discs 4/5 and 5/6. At operation on 10 April 1986 the discs were found to be ruptured and were removed with grafts being inserted. The operation was a technical success with solid fusion at C4-5-6.
His Honour found that the plaintiff was suffering and continuing to suffer significant disabling pain following the accident. Generally, he regarded the plaintiff as a witness of truth.
The further findings of fact relevant to general damages were that the plaintiff was a very energetic, vital person who did not seek much assistance from her children or her husband…

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

Case: [1988] FCA 797
Decision Date: 20 DECEMBER 1988

CaseChat Overview and Summary

Osborne, J.C. v Geuna, M was a case heard by the Full Court of the Federal Court of Australia. The plaintiff, Osborne, sued the defendants, Geuna, for damages resulting from personal injuries sustained in a motor vehicle accident. The initial trial resulted in an award of damages, which the defendants sought to appeal on the basis of the quantum of the damages awarded. The appeal focused on whether the damages for general damages, future wage loss, and domestic services were excessive and did not represent a fair and reasonable compensation for the plaintiff's injuries.

The central legal issue before the court was whether the damages awarded by the trial judge were excessive and whether the trial judge had erred in the assessment of the quantum of damages. The defendants contended that the trial judge had not properly exercised his discretion in assessing the damages, particularly with regard to general damages and future wage loss. The court was required to determine if there was an error of law in the assessment of damages and whether the trial judge had overlooked or failed to take into account relevant considerations in awarding the damages.

The Full Court found that while the trial judge had exercised his discretion in awarding damages, there was an error in the assessment of the quantum of damages. The court held that the trial judge had not sufficiently considered the mitigating factors that should have reduced the amount of damages awarded. The Full Court determined that the damages for general damages, future wage loss, and domestic services were excessive and that the trial judge had not properly exercised his discretion. The appeal was allowed, and the award of damages was reduced from $265,180.00 to $184,580.00. Additionally, the plaintiff was ordered to pay the defendants' costs of the appeal.

Orders

Orders of the court

The appeal be allowed;

The award of damages in the sum of $265,180.00 be set aside and in substitution therefor the sum of $184,580.00 be awarded to the plaintiff; and

The plaintiff pay the defendants' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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