ROADS and Traffic Authority v Jelfs - [1999] NSWCA 179

Reported Decision: (2000) Aust Torts Reports 81-583

New South Wales

Court of Appeal

CITATION: ROADS & TRAFFIC AUTHORITY v JELFS [1999] NSWCA 179

FILE NUMBER(S): CA 40642/96

HEARING DATE(S): 13 November 1998

JUDGMENT DATE:
11 June 1999

PARTIES :

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v DENNIS JELFS

JUDGMENT OF: Mason P at 1; Handley JA at 60; Giles JA at 88

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : NR 600053/95

LOWER COURT JUDICIAL OFFICER: Levine J

COUNSEL: C T Barry QC/ P R Sternberg (Appellant)
D A Wheelahan QC/ M Snedden (Respondent)

SOLICITORS: Ian Victor Knight (Crown Solicitor) (Appellant)
John McDonald & Partners - Murwillumbah (Respondent)

CATCHWORDS: DAMAGES - Compensation to Relatives Act 1897 - Dependants’ action - Award of damages for past and future care - Law Reform (Marital Consortium) Act 1984 - Construction of this Act - Application of Griffiths v Kerkemeyer principle - Apportionment of damages award; DAMAGES - Amount of general damages for nervous shock - Future loss of earning capacity

ACTS CITED: Compensation to Relatives Act 1897
Law Reform (Marital Consortium) Act 1984

DECISION: Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40642/96
MASON P
HANDLEY JA
GILES JA
11 June 1999

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES
v Dennis JELFS

DAMAGES - Compensation to Relatives Act 1897 - Dependants’ action - Award of damages for past and future care - Law Reform (Marital Consortium) Act 1984 - Construction of this Act - Application of Griffiths v Kerkemeyer principle - Apportionment of damages award
DAMAGES - Amount of general damages for nervous shock - Future loss of earning capacity
The respondent’s wife died on 12 September 1989 as the result of a pulmonary embolism following a fall at the appellant’s premises. It was common ground that the death was caused by the fall, and that the fall was the consequence of the appellant’s negligence.
Two proceedings were heard together before Levine J. One was a dependants’ claim pursuant to the Compensation to Relatives Act 1897 and in relation to this the respondent was awarded a verdict of $527,475 (part of this sum being apportioned amongst two young adult children of the respondent and the deceased). The other proceeding was a claim for damages for nervous shock and in relation to this the respondent was awarded a verdict of $476,973.
The defendant appealed, pressing five main grounds.
HELD by Mason P (Handley and Giles JJA concurring), dismissing the appeal:
1. In relation to the submission that s3(1) of the Law Reform (Marital Consortium) Act 1984 precludes the Court from including any sum in respect of “services” as a component of a widower’s damages in proceedings under the Compensation to Relatives Act:
· This proposition was not taken at trial, which precludes this point being taken on appeal.
Coulton v Holcombe (1986) 162 CLR 1; Multicon Engineering Pty Ltd v Federal Airports Corporation (Court of Appeal, unreported,…

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: [1999] NSWCA 179
Decision Date: 11 June 1999

CaseChat Overview and Summary

The Roads and Traffic Authority (RTA) appealed a decision of the District Court of New South Wales concerning damages awarded to Mr. Jelfs. Mr. Jelfs had suffered severe injuries in a motor vehicle accident caused by the negligence of an RTA employee. The primary dispute on appeal concerned the calculation of damages, specifically the inclusion of an amount for gratuitous care provided by Mr. Jelfs' wife and the quantum of general damages for nervous shock and future loss of earning capacity.

The Court of Appeal was required to determine whether the District Court had erred in its assessment of damages. Key legal issues included the proper application of the *Compensation to Relatives Act 1897* (NSW) and the *Law Reform (Marital Consortium) Act 1984* (NSW) in relation to gratuitous care, and the appropriate quantum for general damages, including those for nervous shock and future economic loss. The court also considered the principle established in *Griffiths v Kerkemeyer* regarding compensation for gratuitous services.

The Court of Appeal upheld the District Court's decision, finding no error in the assessment of damages. The court confirmed that the *Law Reform (Marital Consortium) Act 1984* did not preclude an award for gratuitous care provided by a spouse, and that the *Griffiths v Kerkemeyer* principle was correctly applied. The court also found that the quantum of general damages awarded for nervous shock and future loss of earning capacity was within the appropriate range and not demonstrably excessive.

The appeal was dismissed, and the Roads and Traffic Authority was ordered to pay Mr. Jelfs' costs.

Orders

Orders of the court

Appeal dismissed with 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.

CITATION:	ROADS & TRAFFIC AUTHORITY v JELFS [1999] NSWCA 179
FILE NUMBER(S):	CA 40642/96
HEARING DATE(S):	13 November 1998
JUDGMENT DATE:	11 June 1999
PARTIES :	ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v DENNIS JELFS
JUDGMENT OF:	Mason P at 1; Handley JA at 60; Giles JA at 88

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	NR 600053/95
LOWER COURT JUDICIAL OFFICER:	Levine J

COUNSEL:	C T Barry QC/ P R Sternberg (Appellant) D A Wheelahan QC/ M Snedden (Respondent)
SOLICITORS:	Ian Victor Knight (Crown Solicitor) (Appellant) John McDonald & Partners - Murwillumbah (Respondent)
CATCHWORDS:	DAMAGES - Compensation to Relatives Act 1897 - Dependants’ action - Award of damages for past and future care - Law Reform (Marital Consortium) Act 1984 - Construction of this Act - Application of Griffiths v Kerkemeyer principle - Apportionment of damages award; DAMAGES - Amount of general damages for nervous shock - Future loss of earning capacity
ACTS CITED:	Compensation to Relatives Act 1897 Law Reform (Marital Consortium) Act 1984
DECISION:	Appeal dismissed with costs