Maviglia v Maviglia [1999] NSWCA 188

New South Wales Court of Appeal CITATION : Maviglia v Maviglia [1999] NSWCA 188 FILE NUMBER(S) : CA 40729/97 HEARING DATE(S) : 03/06/99 JUDGMENT DATE : 15 June 1999

PARTIES : Salvatore Maviglia v Domenica Maviglia JUDGMENT OF : Mason P at 1; Fitzgerald JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 4386/94 LOWER COURT JUDICIAL OFFICER : Wright ADCJ

COUNSEL : H G Shore (Appellant) M S Jacobs QC/A Kostopoulos (Respondent) SOLICITORS : Sparke Helmore (Appellant) Daniel Svir (Respondent) CATCHWORDS : Personal injury; motor vehicle accident; injuries obscured by subsequent events; inappropriate use of acceptance of respondent's credit ; retrial ordered. DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40729/97 DC 4386/94 MASON P FITZGERALD JA

Tuesday, 15 June 1999

Domenica MAVIGLIA v Salvatore MAVIGLIA

JUDGMENT

1 MASON P: An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them. I also recognise that matters of causation are impressionistic where multiple causes contribute to a "final" position. (Here they included the respondent's pre-accident degenerative spinal condition, the impact of the accident involving the appellant's negligence, the death of Santarno and the impact of the later accident due to the respondent's own negligence.) 2 This said, I agree with Fitzgerald JA that there must be a new trial as to damages. I agree with Fitzgerald JA's reasons. 3 FITZGERALD JA: On 31 August 1991, shortly before her 49th birthday, the respondent was injured when a motor vehicle in which she was a passenger was involved in an accident. She sued the appellant in the District Court for damages for negligence. Liability was admitted. On 3 October 1997, when the respondent was aged 55 years, she was awarded damages of $315,000 and her costs. By this appeal, the appellant requests an order that damages be retried or reassessed by this Court. 4 The components of the respondent's award of $315,000 damages were as follows: (a) Non-economic loss limited in accordance with s79 of the Motor Accidents Act 1988 and calculated on the basis that the severity of the respondent's non-economic loss is 44% of a most extreme case - $110,000; (b) Past economic loss - $ 53,000; (c) Future economic loss - $ 50,000; (d) Out of pocket expenses - $ 11,000; (e) Future medication - $ 5,000; (f) Future medical treatment - $ 3,000; (g) Loss of business - $ 8,000; (h) "Griffiths v Kerkemeyer" - $75,000." 5 The respondent accepts that the award of $8000 for loss of business should be deducted, but contends that the appeal should otherwise be dismissed and that the appellant should be ordered to pay 95% of her costs. 6 The appellant accepts that the respondent is entitled to the sum of $11,000 awarded to her for out of pocket expenses, but contends that the respondent's non-economic loss should be calculated on the basis of 20% of a most extreme case and reduced to $29,500, that past economic loss should be reduced to $7,500, and that each of the other components of the respondent's award should be reduced to nil. 7 Specific issues were raised by the appellant in relation to a number of the heads of damage for which the judgment below compensated the respondent; for example, her pre-trial economic loss and her lost earning capacity. 8 The respondent and her husband had five children and two businesses in which they were equal partners at the time when she was injured. One business was a pizza outlet which they had acquired in 1986. The other was a "family restaurant" acquired in 1987. The respondent worked in the "family restaurant". Her duties involved the preparation of food, including cooking, and she worked long hours for about $200/week. The trial judge found that she had only a "limited" prospect of other employment "[b]ecause of her limited literacy in English". The respondent had never had paid employment until she and her husband acquired the "family restaurant", and had no realistic possibility of paid work other than in a food outlet owned and conducted by her family. Unless there was a business such as the "family restaurant" available to provide the respondent with paid work, her earning capacity was negligible irrespective of her injuries in the accident. 9 The respondent did not return to work after the accident, and the "family restaurant" was sold in December 1992. The respondent persuaded the trial judge that the sale was necessitated by her injuries in the accident and that, but for her injuries, she would have worked until she was 65. There were considerable objections to such a conclusion. 10 The respondent had suffered for some years from diabetes for which she took medication, and had a degenerative spinal condition. Her husband had heart problems which required an angioplasty in 1991. On 12 August 1992, the respondent's fourth child, a 21 year old son, Santarno, was killed in another motor vehicle accident. 11 Another son, Tony, who had managed the pizza outlet, went to Italy to live after Santarno's death. At least after Tony's departure, another son, Bruno sometimes worked in the pizza outlet. Although the respondent's husband also worked in the pizza outlet sometimes, he more usually worked at the "family restaurant". His and the respondent's other children also sometimes worked in the "family restaurant", but also sought to pursue their own interests. The lease of the "family restaurant", which was to expire in May 1993, did not contain a renewal option. The family decision to sell the "family restaurant", resulting in the termination of the respondent's only real work opportunity, was plainly influenced by a variety of factors. These matters are inadequately discussed in the judgment under appeal. 12 It is unnecessary to say more on that topic, except that it exemplifies a fundamental problem with the judgment under appeal; namely, its failure to sufficiently expose the reasoning process which produced the outcome of which the appellant complains. Another illustration of this is to be found in a critical passage in the judgment in which the trial judge held that the respondent's evidence was credible and reliable. 13 His Honour said: "The question of the credit of a witness of course, in a case like this where there is a situation where the parties stand at opposite ends of quite a wide spectrum, is always a difficult matter and inevitably the attacks on the credit are sought to be derived from inferential matters from doctors' reports, what is not told to doctors, the approach of the doctors and so on. At the end of the day however one has to do one's best by observing the witnesses and looking at surrounding material, giving it appropriate weight in all the circumstances. The situation is not made any easier in this case because of the complication - and by use of a word so clinical as that I do not any way seek to underestimate the significance of the matter - the complication of the death of the son in circumstances where the family was obviously a very close knit family and a great deal of grief was caused to the [respondent] as the mother by the death of a son at twenty-one years of age. These are matters which I have given careful consideration to and considered very carefully the considered submissions on behalf of the [appellant] who submitted to the Court, that the [respondent] should not be accepted as a witness of credit. … In my view the [respondent], in giving her evidence, was attempting to assist the Court. She obviously was not an unintelligent person but she was also a person who, for want of a better word, was very deferential and unforthcoming. It is not surprising to me that she may not have given full and detailed information to all of the doctors because of her passive situation approach and particularly because there is no doubt that both the 1991 accident and the death of the son had a significant effect on her, at least in psychological terms. It may be that she was exaggerating to an extent in one particular sense and that was in relation to minimising the effect of her son's death on her. I have little doubt that that death had a significant effect at the time and probably still does but I should make it clear I do not consider that in doing this she was attempting to mislead the Court. More likely than not this "minimisation" was part of a coping mechanism (I am not using that phrase in any technical sense) that she has developed in relation to this event which was a very tragic one for her. As to the daughter, Tina, I also accept her evidence. It was clear that she dearly loved her mother and was very protective of her but I do not consider that that affected her evidence or her assistance to the Court."