MAIORANA v ZAMMIT [1988] NSWCA 88

MAIORANA v ZAMMIT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 29 February 1988

[1988] NSWCA 88

DAMAGES — excessive — no question of principle

Orders

The judgment below should be set aside and in place of that judgment there should be directed the entry of judgment in favour of the respondent in the sum of $39,520.75 to date from the time of the trial. The respondent should pay the appellant's costs of the appeal.

Clarke JA This appeal concerns a judgment for $54,520.75 which Judge Lloyd-Jones directed on 2 March 1987 be entered in favour of the respondent. The judgment was constituted of general damages in the sum of $90,000, interest on the past general damages of $20,000 which totalled $4,000, past wages loss amounting to $445.70 and out-of-pocket expenses $75.00.

The appellant challenges the allowance of $50,000 general damages and the consequential award of interest on past general damages. He contends that the general damages awarded to the respondent are wholly erroneous.

The respondent, who was born in Malta on 28 April 1946, in 1984 lived with her husband and her son, Martin, who was born on 5 August 1971, and worked at Rozelle psychiatric Hospital as a roster clerk. On 10 March 1984 her son left home on a bicycle and was soon after struck by a vehicle which had been stolen by the appellant and as a consequence he received very serious injuries. A neighbour came to the respondent's home and told her that her son was under a car. She ran to the scene. Initially she thought that her son was dead, being confronted with the sight of blood and portion of a bicycle under the motor vehicle which had been involved in the collision.

The respondent's son suffered severe burn injuries over the upper legs and feet and in addition other significant injuries. He was, at the time the respondent arrived at the scene, conscious and suffering greatly. He was taken from the scene of the accident to hospital and remained there for about six and a half weeks during which time his mother visited him and stayed with him all her available waking hours. In the early stages she took two weeks leave from her work during which time she was with him all day. After he was discharged from hospital the respondent cared for him at home for some months.