Sjostrom v McDermott - [2002] NSWCA 80

CITATION: Sjostrom v McDermott [2002] NSWCA 80

FILE NUMBER(S): CA 40295/01

HEARING DATE(S): 14 March 2002

JUDGMENT DATE:
27 March 2002

PARTIES :

Kenneth Sjostrom - Appellant
Timothy John McDermott - Respondent

JUDGMENT OF: Giles JA at 1; Hodgson JA at 51

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 7720/99

LOWER COURT
JUDICIAL OFFICER : Herron DCJ

COUNSEL: J Hislop QC & D J Russell - Appellant
M Joseph SC & R Goodridge - Respondent

SOLICITORS: Henry Davis York - Appellant
Firths - Respondent

CATCHWORDS: DAMAGES - whether accident caused the debilitating condition - extent of effects - percentage of a most extreme case - assessment of economic loss and domestic assistance - no question of principle. ND.

CASES CITED:
Dell v Dalton (1991) 23 NSWLR 528;
Moran v McMahon (1985) 3 NSWLR 700.

DECISION: (1) Appeal allowed; (2) Set aside verdict and judgment for $623,406 and in lieu thereof verdict and judgment for $538,295 taking effect on 5 April 2001; (3) No order as to the costs of the appeal.

CA 40295/01
DC 7720/99

GILES JA
HODGSON JA
Wednesday 27 March 2002

SJOSTROM v McDERMOTT

Judgment

1 GILES JA: This is a defendant’s quantum appeal in a motor accident case. The plaintiff was injured when the defendant’s truck ran into the rear of his car. The accident occurred on 17 October 1996. The plaintiff was then aged 28. Herron DCJ assessed the plaintiff’s damages at $623,406, made up of -

Non-economic loss	$93,500.00
Past economic loss	$97,983.00
Interest on past economic loss	$18,188.00
Future economic loss	$290,938.00
Lost superannuation	$32,063.00
Domestic assistance	$55,063.00
Past out-of-pocket expenses	$25,671.00
Future out-of-pocket expenses	$10,000.00
Total	$623,406.00

2 The defendant’s appeal challenged the items of non-economic loss, past economic loss, future economic loss and domestic assistance. Interest on past economic loss and lost superannuation could consequentially be affected.

The plaintiff’s condition

3 The defendant submitted that the trial judge erred in finding that the plaintiff suffered from traumatic syringomyelia attributable to the accident. Syringomyelia is a condition in which the central canal of the spinal cord is enlarged and the spinal cord is affected. It can occur in the ordinary course as part of aging, but can also be caused by trauma or infection.

4 The plaintiff left school at 16, half way through year 10, and lacked writing skills. He obtained a trade as a printer, and worked at a number of printing firms. His printing skills were overtaken by new technologies, and on 7 August 1996 he took up employment as a plumber’s labourer with Axis Plumbing Services. It was reasonably heavy work of a labouring nature. About three weeks before the accident the plaintiff suffered an injury to his finger, and he was not working and was receiving worker’s compensation payments at the time of the accident and for a time thereafter.

5 The plaintiff said that in the accident “my neck felt like it had been chopped off”, and that there…

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 Sjostrom v McDermott

Details

AGLC: Sjostrom v McDermott [2002] NSWCA 80
Case: [2002] NSWCA 80
Decision Date: 27 March 2002

CaseChat Overview and Summary

The appeal in *Sjostrom v McDermott* concerned a dispute over damages awarded to the respondent, Mr. McDermott, following an accident. The appellant, Ms. Sjostrom, sought to challenge the quantum of damages awarded by the trial court. The matter was heard in the Court of Appeal of New South Wales by Giles and Hodgson JJA.

The central legal issues before the Court of Appeal were whether the accident had caused the debilitating condition suffered by the respondent, the extent of the effects of that condition, and the assessment of economic loss and domestic assistance. The court noted that there was no question of principle involved in the appeal.

The Court of Appeal allowed the appeal, setting aside the original verdict and judgment for $623,406. In its place, the court entered a verdict and judgment for $538,295, with the judgment to take effect from 5 April 2001. No order was made as to the costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside verdict and judgment for $623,406 and in lieu thereof verdict and judgment for $538,295 taking effect on 5 April 2001; (3) No order as to the costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Sjostrom v McDermott [2002] NSWCA 80
FILE NUMBER(S):	CA 40295/01
HEARING DATE(S):	14 March 2002
JUDGMENT DATE:	27 March 2002
PARTIES :	Kenneth Sjostrom - Appellant Timothy John McDermott - Respondent
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 51

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7720/99
LOWER COURT JUDICIAL OFFICER :	Herron DCJ

COUNSEL:	J Hislop QC & D J Russell - Appellant M Joseph SC & R Goodridge - Respondent
SOLICITORS:	Henry Davis York - Appellant Firths - Respondent
CATCHWORDS:	DAMAGES - whether accident caused the debilitating condition - extent of effects - percentage of a most extreme case - assessment of economic loss and domestic assistance - no question of principle. ND.
CASES CITED:	Dell v Dalton (1991) 23 NSWLR 528; Moran v McMahon (1985) 3 NSWLR 700.
DECISION:	(1) Appeal allowed; (2) Set aside verdict and judgment for $623,406 and in lieu thereof verdict and judgment for $538,295 taking effect on 5 April 2001; (3) No order as to the costs of the appeal.