Roads and Traffic Authority v Cremona

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      RTA v CREMONA [2001]  NSWCA 338

FILE NUMBER(S):
40652/00

HEARING DATE(S):               19 September 2001
20 September 2001

JUDGMENT DATE: 16/11/2001

PARTIES:
Roads and Traffic Authority - Appellant
Minna Maarit Cremona - Respondent

JUDGMENT OF:       Priestley JA Sheller JA Stein JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          75/94

LOWER COURT JUDICIAL OFFICER:     Dowd J

COUNSEL:
C T Barry QC/A Porthouse - Appellant
B M J Toomey QC/M Kumar - Respondent

SOLICITORS:
I V Knight - State Crown Solicitor - Appellant
Riley, Gray-Spencer - Respondent

CATCHWORDS:
DAMAGES - Compensation to Relatives Act 1897 - high income medical practitioner - damages recoverable by wife and two children

LEGISLATION CITED:
Compensation to Relatives Act 1897
Compensation to Relatives (Amendment) Act 1928 Act No 8
Administration of Justice Act 1982
Fatal Accidents Act 1846 (UK)
Repatriation Act 1920 (Cth)
Supreme Court Act 1970
Income Tax Assessment Act 1936 (Cth)

DECISION:
1  Parties to file and serve written submissions on costs by 4 pm on 27 November 2001
2  Parties to bring in Short Minutes of the orders to be made in the appeal at 9.30 am on 30 November 2001
3  Stand over the further hearing of the appeal to 9.30 am on 30 November 2001 for orders to be made.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40652/00
CL 75/94

PRIESTLEY JA
  SHELLER JA
  STEIN JA

ROADS AND TRAFFIC AUTHORITY  v CREMONA

The respondent is the widow of Dr Louis Cremona, who died as a result of a motor accident on 28 May 1993. Dr Cremona's car collided with a truck carrying spoil from road works being carried out by the RTA (the appellant).  The respondent began proceedings under the Compensation to Relatives Act 1897 (the Act) on behalf of herself and the two young children of the marriage, to recover damages against the appellant. The respondent obtained a summary judgment against the appellant in relation to liability and was awarded damages of $5,091,601.

The trial Judge found that Dr Cremona was a very successful and hard working medical practitioner whose practice produced a high income for the family.  He had engaged in substance abuse for three years before successful treatment.  Issues at the trial included whether the marriage would have lasted, whether Dr Cremona would have relapsed into drug use, whether his practice would have continued to expand, whether he would have acquired a partner and whether he would have moved from bulk billing to a full charging practice.  Other issues included whether the respondent would remarry, and whether she would return to the workforce.

The appellant challenged the trial Judge's findings as to the growth of the practice, the appropriate vicissitudes for Dr Cremona and the respondent and the application of Supreme Court interest to the past loss. The appellant also submitted that no amount was recoverable for loss of superannuation and if it was, that the method used to calculate that…

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Details
Case
[2001] NSWCA 338
Decision Date

CaseChat Overview and Summary

The Roads and Traffic Authority (RTA) appealed from a decision of Dowd J, and Mrs Cremona cross-appealed. The dispute arose from a motor vehicle accident where Dr Cremona's car collided with a truck driven by Mr Capelo on an expressway. At the time of the accident, the RTA was undertaking road works on the expressway, which involved loading spoil from the road surface into trucks, including Mr Capelo's.

The court was required to determine the quantum of damages recoverable by Mrs Cremona and their two children under the Compensation to Relatives Act 1897, following the death of Dr Cremona in the accident. This involved assessing the financial loss suffered by the dependants of a high-income medical practitioner.

The court considered the evidence regarding Dr Cremona's extensive medical practice, his dedication, and his high level of community and professional respect. It noted his significant patient load, the growth of his practice, and his dual income from patient consultations and Medicare rebates. The court also took into account the ages of Mrs Cremona and their two young children, Sarah and Alex, who were described as progressing well in their education. The reasoning focused on the principles of assessing dependency loss for dependants of a deceased individual with a substantial earning capacity.

The provided text does not detail the final orders or outcome of the appeal, only the arrangements for filing submissions on costs and bringing in Short Minutes of the orders to be made.

Orders

Orders of the court

1 Parties to file and serve written submissions on costs by 4 pm on 27 November 2001

2 Parties to bring in Short Minutes of the orders to be made in the appeal at 9.30 am on 30 November 2001

3 Stand over the further hearing of the appeal to 9.30 am on 30 November 2001 for orders to be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The RTA has appealed from his Honour’s decision and Mrs Cremona has cross-appealed.Judgment of 20 June 2000 The motor vehicle accident occurred when Dr Cremona’s car was travelling in a north-bound lane on the expressway. The car struck the rear of a large truck driven by Mr Capelo. At the time the RTA was carrying out road works on the south-bound carriage of the expressway. These works involved stripping the road surface and loading the spoilage into trucks, including Mr Capelo’s truck, for the spoilage to be taken away. Dr Cremona was born in Malta on 9 September 1954 and Mrs Cremona in Finland on 20 April 1964. They were married on 10 September 1988. At the date of judgment, the first child of the marriage, Sarah, was attending the local Montessori School and was doing extremely well. The second child of the marriage, Alex, also attended the school and was progressing above his age level. He was a highly motivated and articulate child. From the time he left the University of New South Wales with an honours degree in medicine at the end of 1978 Dr Cremona had practised as a general medical practitioner. On 1 October 1985 he began practice on his own at Dapto. He held various academic and professional positions and was regarded as one of the hardest working general practitioners in New South Wales. His Maltese background enabled him to expand his clientele in the Maltese community which is significantly represented in the Wollongong/Illawarra area. He carried on an extremely high level of community and medical activity. Dowd J described in some detail the various programmes that Dr Cremona was involved with. His Honour accepted that Dr Cremona’s medical knowledge and ethical standards were very highly spoken of. He had a very high level of patient skills and community respect. He was popular, enjoyed the confidence of his patients and commanded a range of surgical and other medical skills. Dowd J said:“15 The overriding nature of the practice however was that of a doctor who carried out vast numbers of consultations where such consultations were clearly much shorter than the average consultation but there is no evidence that he was any less skilful than a doctor that took longer in consultation. Dr Cremona worked from very early in the morning to very late in the afternoon. The evidence showed that his waiting room was almost always fairly full with patients waiting.16 The evidence before me showed that his patient numbers increased to more than double in the period 1986-1993 notwithstanding that he already had a very high patient load and that during almost the same period his consultation rebate from Medicare also doubled. From 1985 to 1993 the number of distinct patients approximately doubled in number as did the number of services rendered. In his practice Dr Cremona was assisted from time to time by a number of locums and assistants from 1985 until May 1993.17 Dr Cremona’s surgery in Bann Bann Street, Dapto comprised a very large waiting room off which were two consulting rooms, one used by Dr Cremona, the other used by any other doctor who worked in the practice and was otherwise used for persons having procedures such as an ECG or where someone was ill and needed to rest and lie down.18 There was adequate provision on the premises for a partner or employed doctor to work with Dr Cremona. The subject building had other medical professionals that could provide related medical services for Dr Cremona’s practice. Dr Cremona had a bulk billing practice as did the sixteen other doctors that carried on general medical practice in Dapto.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.