Petrovic v Waterhouse Racing

[2007] NSWSC 740

CITATION:	Petrovic v Waterhouse Racing & Anor [2007] NSWSC 740
HEARING DATE(S):	02/07/2007
JUDGMENT DATE :	2 July 2007
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	In each case award of damages and costs. Stay for 28 days on certain conditions.
CATCHWORDS:	DAMAGES: - personal injury - supplementary judgment to [2007] NSWSC 508 - final orders
CASES CITED:	Todorovic v Moussa (2001) 53 NSWLR 463 Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446
PARTIES:	Natalie Petrovic (plaintif - 20134/2004) Ruzica Petrovic (plaintiff - 20132/2004) Gai Waterhouse Racing Pty Ltd (1st defendant) Australian Jockey Club (2nd defendant)
FILE NUMBER(S):	SC 20134/2004; 20132/2004
COUNSEL:	P Semmler QC with R Royle (plaintiffs) J Machonachie QC (defendants)
SOLICITORS:	Vizzone Ruggero & Associates (plaintiffs) Henry Davis York (1st defendant) Riley Gray-Spencer (2nd defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Monday 2 July 2007

20134/04 Natalie Petrovic v Gai Waterhouse Racing Pty Limited & Australian Jockey Club
20132/04 Ruzica Petrovic v Gai Waterhouse Racing Pty Limited & Australian Jockey Club

JUDGMENT/ORDERS – Ex tempore

1 HIS HONOUR: I delivered a judgment in these matters on 19 June 2007 (NSWSC 508) and I sought counsel's assistance in calculating the damages to be awarded in accordance with my reasons to each of the plaintiffs. That assistance has now been provided and I am grateful for it. However, senior counsel for the plaintiffs raised an issue about two paragraphs of my judgment concerning the damages for each of the plaintiffs.

2 In paragraph 119, dealing with the case of Natalie Petrovic, I said:

I would allow an award for gratuitous assistance based on eight hours per week in the past and five hours per week in the future.

I said that these amounts should be calculated by the method adopted in certain pages of the plaintiff's written submissions. It has been correctly brought to my attention that that conveys that what I was awarding was an amount for gratuitous assistance in the past and for gratuitous assistance in the future, that is, the sentence I have quoted, read literally, conveys that meaning. Clearly that was not my intention. Reference to the relevant pages of the submissions makes that abundantly clear because those pages set out a method of calculation of future assistance which makes it quite clear that it is a claim for paid care, future care I should say, and I was inviting counsel to calculate it on the basis of the rates set out in the submissions for such paid care.

3 When I came to deal with Mrs Ruzica Petrovic's similar claim, I said at paragraph 187 that I saw no reason to depart from the allowance which I had made in her daughter's case. Again, that was elliptical, to say the least, and my intention was that future care would be on the basis of paid care. Again, I am also adopting the method of calculation set out in the written submissions filed on her behalf. In the submissions in her case, the relevant part is at pages 42 to 43.

4 I have had the assistance this morning of submissions by Mr Maconachie QC, who has come into the matter at the last minute for the defendants, and I appreciate the assistance that he has provided. He opposed any change or amendment to the reasons, calling in aid authorities concerning the amendment of reasons for judgment and referring in particular to Todorovic v Moussa (2001) 53 NSWLR 463 at [41]ff.

5 Mr Semmler SC for the plaintiffs for his part referred me to an authority dealing with the slip rule, Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446. It does not appear to me that it is necessary to go down the path of either line of authority. The short answer to the present situation is paragraph 192 of my reasons, where having requested counsel to prepare short minutes to give effect to those reasons, I added that counsel should feel free to inform me if in assessing damages I made any technical error or failed to deal with any relevant matter.

6 What Mr Semmler now seeks, it appears to me, is his response to that invitation. He has done no more than bring to my attention an obvious slip or ellipse in my reasons which requires clarification. My intention as to future care is clear from my reference to relevant portions of the written submissions. It appears to me that it is appropriate that I take the course that Mr Semmler now asks that I do.

7 I will not literally amend the reasons I have given. I do not think that is the appropriate course and counsel has accepted that is so. What I propose to do is I will simply clarify the relevant paragraphs of my reasons in this way. As far as each plaintiff is concerned, I intend an award for gratuitous assistance based on eight hours per week in the past and paid assistance for five hours per week in the future. I have already specified the relevant portion of the submissions in respect of Natalie Petrovic by which that calculation should be made. For more abundant caution I will add that in the case of Ruzica Petrovic, those amounts should be calculated by the method adopted in the submissions on her behalf at pages 42 to 43.

8 The short minutes were prepared in each case upon the basis that I would correct the slip which has been brought to my attention. That being so, in the case of Natalie Petrovic I award damages assessed in accordance with the short minutes which I shall sign and date today. Accordingly, there will be verdict and judgment for her in the sum of $1,545,683.

9 In respect of the case of Ruzica Petrovic I enter judgment in accordance with the short minutes prepared in her case which I again shall sign and date today. Accordingly, in her case there will be a verdict and judgment in the sum of $797,151.

10 In the case of Natalie Petrovic the defendants are to pay the plaintiff's costs on a party and party basis up to 17 March 2005, and on an indemnity basis from 18 March 2005.

11 In the case of Ruzica Petrovic the defendants are to pay the plaintiff's costs on a party and party basis up to 2 May 2005, and on an indemnity basis from 3 May 2005.

12 I stay execution of the judgment for 28 days or until further order of the Court of Appeal upon the following conditions: firstly, that 65 per cent of the judgment in each case is to be paid within 28 days; secondly, on condition that any appeal by the defendants be pursued with diligence and expedition.

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