Palma v Nominal Defendant - [2016] NSWCA 12

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Palma v Nominal Defendant [2016] NSWCA 12
Hearing dates: 12 February 2016
Decision date: 12 February 2016
Before: Gleeson JA at [1]
Simpson JA at [2]
Adamson J at [3]
Decision:
(1) Appeal dismissed
(2) Appellant to pay the respondent’s costs

Catchwords: DAMAGES – motor accident – future economic loss – whether trial judge erred in adverse finding of credit – whether trial judge erred in awarding a buffer rather than a capitalised weekly sum
DAMAGES – motor accident – past and future assistance – onus of proof on plaintiff - whether trial judge erred in finding appellant did not establish need for such care
Legislation Cited: District Court Act 1973 (NSW), s127
Motor Accidents Compensation Act 1999 (NSW), ss 126, 141B
Uniform Civil Procedure Rules 2005 (NSW), rule 51.55
Supreme Court Act 1970 (NSW), s45(4)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302
Devries v Australian National Railways Commission (1993) 177 CLR 472
Penrith City Council v Parks [2004] NSWCA 201
Telfer v Telfer [2014] NSWCA 188
Category: Principal judgment
Parties: Nestor Antonio Palma (Appellant)
The Nominal Defendant (Respondent)
Representation:
Counsel:
R. Sheldon SC/ E Welsh (Appellant)
J.J Ryan (Respondent)
Solicitors:
Brydens Law Office (Appellant)
McInnes Wilson Lawyers (Respondent)

File Number(s): 2015/63888
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

23 December 2014

Before:

Gibson DCJ

File Number(s):

2013/46107

Judgment – EX TEMPORE

GLEESON JA: I agree with Adamson J.
SIMPSON JA: I also agree.
ADAMSON J: Nestor Palma, the appellant, appeals pursuant to s 127 of the District Court Act 1973 (NSW) against the assessment of damages by Gibson DCJ on 23 December 2014 following a motor vehicle accident on 3 February 2010 in which the appellant’s vehicle was struck from behind by another vehicle. The Nominal Defendant, the respondent, was liable, as neither the owner nor the driver of the vehicle could be identified.
The trial judge assessed the appellant’s damages at $327,435, calculated as follows.

Head of damage

Amount

Past economic loss

$91,800

Past superannuation loss

$10,098

Future economic loss, including superannuation

$100,000

Past out of pocket expenses

$84,177

Future out of pocket expenses

$25,000

Fox v Wood (agreed)

$16,360

Past assistance

NIL

Future assistance

NIL

The appellant challenges the award for past and future economic loss, as well as the failure to award damages for past and future assistance. He seeks an order that this Court reassess his damages; in the alternative, he seeks an order that the matter be remitted to the District Court for reassessment of his damages. The grounds of appeal are:

1. The Trial Judge erred in her use of an adverse finding against the Appellant in her assessment of his damages.
2. The Trial Judge erred in failing to take into account the credible evidence of the Appellant’s ex-de facto in assessing his entitlement to…

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 Palma v Nominal Defendant

Details

AGLC: Palma v Nominal Defendant [2016] NSWCA 12
Case: [2016] NSWCA 12
Decision Date: 12 February 2016

CaseChat Overview and Summary

In *Palma v Nominal Defendant*, the New South Wales Court of Appeal considered an appeal from a decision of the District Court concerning damages awarded to the appellant following a motor vehicle accident. The appellant sought to challenge findings made by the trial judge regarding future economic loss and the need for past and future assistance.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in making an adverse finding as to the appellant's credit in relation to future economic loss, and whether the trial judge had erred in awarding a buffer for future economic loss rather than a capitalised weekly sum. Additionally, the Court was asked to determine whether the trial judge had erred in finding that the appellant had not established the need for past and future assistance, and whether the onus of proof in relation to such assistance had been discharged by the appellant.

The Court of Appeal upheld the trial judge's findings. Regarding future economic loss, the Court found no error in the trial judge's adverse credit finding, which was based on a comprehensive assessment of the evidence. The Court also found no error in the approach taken to awarding a buffer rather than a capitalised sum, noting that this was a matter within the trial judge's discretion. On the issue of assistance, the Court agreed with the trial judge that the appellant had not discharged the onus of proof to establish the need for the claimed past and future assistance.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.

Orders

Orders of the court

(1) Appeal dismissed

(2) Appellant to pay the respondent’s costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Palma v Nominal Defendant [2016] NSWCA 12
Hearing dates:	12 February 2016
Decision date:	12 February 2016
Before:	Gleeson JA at [1] Simpson JA at [2] Adamson J at [3]
Decision:	(1) Appeal dismissed (2) Appellant to pay the respondent’s costs
Catchwords:	DAMAGES – motor accident – future economic loss – whether trial judge erred in adverse finding of credit – whether trial judge erred in awarding a buffer rather than a capitalised weekly sum DAMAGES – motor accident – past and future assistance – onus of proof on plaintiff - whether trial judge erred in finding appellant did not establish need for such care
Legislation Cited:	District Court Act 1973 (NSW), s127 Motor Accidents Compensation Act 1999 (NSW), ss 126, 141B Uniform Civil Procedure Rules 2005 (NSW), rule 51.55 Supreme Court Act 1970 (NSW), s45(4)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Devries v Australian National Railways Commission (1993) 177 CLR 472 Penrith City Council v Parks [2004] NSWCA 201 Telfer v Telfer [2014] NSWCA 188
Category:	Principal judgment
Parties:	Nestor Antonio Palma (Appellant) The Nominal Defendant (Respondent)
Representation:	Counsel: R. Sheldon SC/ E Welsh (Appellant) J.J Ryan (Respondent) Solicitors: Brydens Law Office (Appellant) McInnes Wilson Lawyers (Respondent)
File Number(s):	2015/63888
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 23 December 2014 Before: Gibson DCJ File Number(s): 2013/46107

Head of damage	Amount
Past economic loss	$91,800
Past superannuation loss	$10,098
Future economic loss, including superannuation	$100,000
Past out of pocket expenses	$84,177
Future out of pocket expenses	$25,000
Fox v Wood (agreed)	$16,360
Past assistance	NIL
Future assistance	NIL