Tu Tran v Dos Santos (No 2) - [2009] NSWSC 336

CITATION: Tu Tran v Dos Santos (No 2) [2009] NSWSC 336

HEARING DATE(S): 31 March 2009 (Submissions closed 16 April 2009)

JUDGMENT DATE :
1 May 2009

JURISDICTION: Common Law

JUDGMENT OF: Smart AJ

DECISION: Plaintiff awarded damages (see from para 67) with costs on a party | party basis.

CATCHWORDS: Assessment of Damages - Plaintiff not entitled to interest on past economic loss for impairment of earning capacity as did not come within s 137(4)(a)(i) of Motor Accidents Compensation Act 1999 - Future Medical Treatment and Pharmaceutical Items - Attendant Care Services - Physiotherapy - Cost of Fund Management - Indemnity Costs

LEGISLATION CITED: Motor Accidents Act 1988, s72
Motor Accidents Compensation Act 1999, ss3, 128, 137(4)(a)(i)

CATEGORY: Principal judgment

CASES CITED: Anthony Haywood v Collaroy Services Beach Club Limited [2006] NSWSC 566
Buckman v M & K Napier Constructions Pty Limited [2005] NSWSC 546
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Marsland v Andjelic (1993) 2 NSWLR 649
Nicholson v Nicholson (1994) 35 NSWLR 308 (NSWCA)
Rottenbury by his Tutor Wren v Rottenbury [2007] NSWSC 215
San v Rumble (No 2) [2007] NSWCA 259
South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

PARTIES: Tu Tran
Maria Dos Santos

FILE NUMBER(S): SC 20210/06

COUNSEL: HJ Marshall SC and R Taylor (P)
R Stitt QC and HM Stitt (D)

SOLICITORS: Keddies Lawyers (P)
Sparke Helmore (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Smart AJ

1 May 2009

20210/06 Tu Tran v Maria Dos Santos
JUDGMENT

1 Following the principal judgment of 20 November 2008 I have heard arguments on a number or items relating to the issue of damages and the plaintiff’s application for indemnity costs.

2 The following items are no longer in dispute, with one exception indicated:

Non-economic loss	$390,000.00
Out of pocket expenses	$320,219.95
Past economic loss of earning capacity	$141,220.00
Future loss of earning capacity (the plaintiff no longer pursues a claim for the ‘lost years’)	$439,263.00
Past loss of superannuation	$15,344.00
Future loss of superannuation	$48,319.00
Future nursing care and Canterbury District Nursing Home fees	$2,182,279.00
Future Hospitalisation	$68,145.00
Attendant (gratuitous) care services (The method of calculation was not challenged but the plaintiff’s entitlements to such an award was challenged.)	$151,497.00
Miscellaneous: hairdresser	$714.63
Miscellaneous: specialised chair	$4,196.00

There was a contest over the following items:

Interest on past economic loss for impairment of earning capacity

3 The defendant submitted that s 137 of the Motor Accidents Compensation Act 1999 precluded an award of interest. To obtain an award of interest the plaintiff must bring himself within s 137(4)(a)(i):

“(a) Interest is not payable…

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: [2009] NSWSC 336
Decision Date: 1 May 2009

CaseChat Overview and Summary

The case of Tu Tran v Dos Santos (No 2) involved a dispute between the plaintiff, Tu Tran, and the defendant, Dos Santos, relating to damages arising from a motor vehicle accident. The plaintiff sought compensation for injuries sustained in the accident, including claims for past economic loss, future medical treatment, and attendant care services. The matter was heard in the District Court of New South Wales.

The primary legal issues before the court were the calculation of damages for past economic loss and the assessment of costs for future medical treatment, pharmaceutical items, and attendant care services. Specifically, the court needed to determine whether the plaintiff was entitled to interest on past economic loss and if the costs claimed for future medical treatment, pharmaceutical items, and attendant care services were reasonable and necessary.

The court found that the plaintiff was not entitled to interest on past economic loss as it did not fall within the specified criteria of section 137(4)(a)(i) of the Motor Accidents Compensation Act 1999. Regarding the future medical treatment, pharmaceutical items, and attendant care services, the court held that the costs claimed were reasonable and necessary. The court also awarded indemnity costs to the plaintiff, recognising the significant contribution of the plaintiff's legal team in achieving a favourable outcome. The court thus directed that the defendant pay the plaintiff's costs of the proceeding.

Orders