FAGAN v CAFE [1995] NSWCA 144

FAGAN v CAFE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ and PRIESTLY JA 10 August 1995 [1995] NSWCA 144

DAMAGES — ASSESSMENT OF DAMAGES FOR PERSONAL INJURIES — where plaintiff already requiring care before accident — whether extra care required — no error in finding.

The plaintiff, prior to a motor vehicle accident, suffered from cerebral palsy and already required the full-time care of his mother. The issue in the appeal concerned the trial judge's findings as to the extra need for domestic services resulting from the accident - HELD - No error was shown. (No question of principle involved.)

Gleeson CJ. This is an appeal from a decision of his Honour Judge Solomon given in the District Court in February of this year. The matter came before his Honour for assessment of damages in relation to personal injuries suffered by the respondent as a result of a motor vehicle accident. The respondent was run down in Castlereagh St, Coonamble by a motor vehicle.

I do not propose, for purposes of giving my reasons, either to repeat or to summarise the findings of the facts in the reasoning of Solomon DCJ. I will assume his Honour's reasons for judgment are available to be read with my reasons.

His Honour awarded damages in the amount of $139,154.37. The appeal is limited to a challenge to two components of that amount. The first is a sum of $16,028.08, and the second is a sum of $65,540.44. Those amounts were awarded respectively in relation to past domestic services. The future domestic services and the awards were governed by the provisions of s 72 of the Motor Accidents Act.

The case presented the trial judge with a difficult factual judgment by reason of the following circumstances. The respondent was born in June 1938. The motor vehicle accident occurred in July 1991. The respondent had been seriously disabled since birth. He suffered from cerebral palsy. He was cared for by his elderly mother. There was a good deal of evidence referred to in Solomon DCJ's reasons for judgment concerning the extent of independence enjoyed by the respondent prior to the 1991 injury and the effect of that injury upon his independence and upon his needs for care.