Pasqualotto v Pasqualotto (No 4) - [2014] VSC 297

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2010 03305

ADAM PASQUALOTTO	Plaintiff
v
R & L PASQUALOTTO	Defendants

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 JUNE 2014
DATE OF JUDGMENT:	24 JUNE 2014
CASE MAY BE CITED AS:	Pasqualotto v Pasqualotto (No 4)
MEDIUM NEUTRAL CITATION:	[2014] VSC 297

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COSTS – interest payable on judgment – where previous judgment affected by legal error – error subsequently corrected on appeal and remitter – plaintiff lost benefit of judgment that should have been entered – certification of counsel’s fees – Accident Compensation Act 1985 (Vic) s 134AB(34), Supreme Court Act 1986 (Vic) s 60(1).

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr A Ingram	Slater & Gordon Lawyers
For the defendants	Mr P Jens	Wisewould Mahony Lawyers

HIS HONOUR:

Following my determination of the remitted questions, I must determine:

·whether and what interest is payable on the judgment sum;
·whether I or the Costs Court should certify for plaintiff’s counsel for the purposes of costs

Background

The plaintiff issued a proceeding in this court on 11 June 2010 against the defendants (his parents) claiming damages for alleged negligence and breach of statutory duty in respect of injuries suffered by him during the course of his employment by them on the family farm.

The proceeding was tried before Kyrou J and a jury of six. The verdict of the jury was given on 25 October 2011 by reference to five questions. The questions and answers given by the jury were as follows:

(1) was there negligence on the part of the defendants which was a cause of the plaintiff’s injuries?

Answer: No

(2) was there a breach of statutory duty on the part of the defendants which was a cause of the plaintiff’s injuries?

Answer: Yes

(3) if yes to questions (1) or (2), was there contributory negligence on the part of the plaintiff which was a cause of his injuries?

Answer: Yes

(4) if yes to question (3), by what percentage is it just and equitable that the damages recoverable by the plaintiff should be reduced having regard to his own share of responsibility for his injuries?

Answer: 70 per cent

(5) if yes to questions (1) or (2), what is a fair and reasonable sum to compensate the plaintiff for his past and future pain and suffering including loss of enjoyment of life and his past and future loss of earning capacity?

Answer: Pain and suffering damages $400,000

Loss of earning capacity damages $444,067

In Pasqualotto v Pasqualotto,[1] Kyrou J dismissed the plaintiff’s application for judgment to be entered wholly in his favour despite the verdict of the jury.
[1][2011] VSC 550 (27 October 2011).

Pursuant to the verdict of the jury, on 3 November 2011 judgment was entered in favour of the plaintiff by Kyrou J in the amount of $236,287.50, being the amount of the verdict of the jury ($844,067) less…

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 Pasqualotto v Pasqualotto (No 4)

Details

AGLC: Pasqualotto v Pasqualotto (No 4) [2014] VSC 297
Case: [2014] VSC 297
Decision Date: 24 JUNE 2014

CaseChat Overview and Summary

The proceedings before the court involved a dispute between Pasqualotto and Pasqualotto, with the matter being heard in the Supreme Court of Victoria. The central issue was the calculation of interest on a judgment sum following a legal error that was subsequently rectified on appeal. The original judgment had been affected by a legal error, which was later corrected by the Court of Appeal. As a result, the plaintiff did not benefit from the interest that should have been applied to the corrected judgment.

The court was tasked with determining the appropriate amount of interest to be paid on the judgment sum, considering the legal error and its subsequent correction. Specifically, the court had to decide whether the plaintiff was entitled to interest from the date of the original judgment or from the date the error was rectified on appeal. The court also needed to consider the statutory provisions under the Accident Compensation Act 1985 (Vic) and the Supreme Court Act 1986 (Vic) relevant to the certification of counsel's fees and the calculation of interest.

The court held that the plaintiff was entitled to interest from the date of the original judgment until the date of the remitted judgment. The court reasoned that the plaintiff had lost the benefit of the interest that should have been applied to the corrected judgment due to the legal error. The court further noted that the statutory provisions under the Accident Compensation Act 1985 (Vic) and the Supreme Court Act 1986 (Vic) supported the calculation of interest from the date of the original judgment. The court ordered that interest be paid on the judgment sum from the date of the original judgment to the date of the remitted judgment, in accordance with the statutory provisions.

Orders