New South Wales Supreme Court CITATION : Zampetides v The State of New South Wales [2000] NSWSC 527 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20688 of 1997 HEARING DATE(S) : 2 June 2000 JUDGMENT DATE : 14 June 2000 Tassy Zampetides (Plaintiff) PARTIES : v The State of New South Wales (Defendant) JUDGMENT OF : Master Malpass COUNSEL : Mr D HiggsSC/Mr M McAuley (Plaintiff) Mr P Hall QC/Mr L Gyles (Defendant) SOLICITORS : Paul A Curtis & Co (Plaintiff) Hunt & Hunt (Defendant) CATCHWORDS : Assessment of further heads of damage - no question of principle. LEGISLATION CITED : N/A CASES CITED : N/A DECISION : See paragraphs 10 to 26. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS WEDNESDAY 14 JUNE 2000 20688 OF 1997 TASSY ZAMPETIDES v THE STATE OF NEW SOUTH WALES JUDGMENT 1 Judgment in the matter was delivered on 16 December 1999. At that stage, there were certain heads of damage which had not been resolved. 2 The parties were given the opportunity to see if any consensus could be reached at least on some of these matters. The parties were unable to reach any consensus whatsoever. 3 Arrangements were made for the exchanging of written submissions on the outstanding questions and Friday 2 June 2000 was allocated as a hearing date for the making of oral submissions on these issues. 4 On that day, counsel orally addressed to their respective submissions and efforts were made to at least narrow some of the areas of contention. 5 The first matter that was dealt with was that of home modification costs. Findings have been made on this head of damage and the conclusion had been reached that it would be reasonable to make allowance for the possibilities of home acquisition and the need for some modification to make such a home suitable for the requirements of the plaintiff. 6 Ultimately, the plaintiff sought an allowance in the order of $134,050. This figure remained related to the rejected concept of an architecturally designed home. In stunning contrast, the defendant said that only about $5,000 should be allowed. This took into account minor modifications recommended by Dr Buckley. 7 As an alternative submission, the plaintiff adopted the figure of $125,000. This figure had been earlier put forward by the defendant as a lump sum necessary to enable the plaintiff merely to rent a slightly larger house. The defendant pointed out that this was a figure calculated on the basis that the landlord would be bearing certain costs (including the providing of a swimming pool). 8 It is convenient to defer further consideration of this head of damage until other matters have been determined. There are other heads of damage which relate to matters which could be regarded as falling within the home modification area (including heating and sun protection for a swimming pool, air conditioning and related operating and replacement costs). The approach has been taken of determining each of these matters on an individual basis. 9 It has been found that the calculation of damages should take into account the possibility of the need for heating and for the providing of sun protection for a pool. Both of these matters remain in issue. 10 I shall now deal with the matter which is described as the claim for the capital cost of heating a pool. The plaintiff sought an allowance in the sum in the order of $28,283 and the defendant was prepared to allow at least $15,000. In the course of the hearing a sum of $23,000 was put forward as an appropriate allowance. Whilst counsel did not have instructions to accept that figure, both informed the court that they would not want to put any submissions in opposition to such an amount being allowed. Accordingly, an assessment in the sum of $23,000 is made for this head of damage. 11 I then turn to the matter of sun protection. An enclosure structure, as recommended by the plaintiff's architect has been found not to be reasonable (it would cost in the order of $59,000). A decision is yet to be made as to what may be reasonable provision for sun protection. The defendant suggests a shade cloth and allows a sum in the order of $5,000 as the capital cost for this item. This suggestion lacks evidentiary support. In my view it would not be suitable and would lead to an increase in heating costs. There are other options. One is a structure which has a capital cost in the order of about $33,000. It the circumstances of this case, it seems to me that such a structure would be reasonable for the needs of the plaintiff. I allow the sum of $33,000 for sun protection. 12 The next item relates to the capital cost of air conditioning. There is a need for air conditioning. Any home acquisition may have suitable or at least some air conditioning. The plaintiff seeks an award in the sum of $34,087. This is a figure that was given by the plaintiff's expert in relation to the architecturally designed home. The defendant is prepared to allow a sum of $20,000. This a figure that was given by the defendant's expert in relation to a project home. Neither of the approaches provides an accurate measure of what should be allowed for the possible costs of air conditioning. Doing the best that I can in the circumstances, I allow the sum of $25,000. 13 There is also a claim for air conditioning operating costs. On this matter, the difference between plaintiff and defendant was modest. The plaintiff is seeking an award in the order of $34,000. The defendant was prepared to allow $30,000. A figure of $32,000 was mentioned during the course of argument. Both counsel took the view that no argument would be put in opposition to the allowing of such sum. Accordingly, I allow the sum of $32,000 for this head of damage. 14 A similar situation applied in the case of the claim for pool running costs. The plaintiff was seeking a sum in the order of $88,880. The defendant was prepared to allow $66,000. This is the matter on which there were competing views between the experts. Nothing was said in opposition to a proposed allowance in the sum of $77,000. Accordingly, that sum is allowed for this head of damage. 15 Initially, there was disagreement as to the sum to be allowed for air conditioning replacement costs. Ultimately, there was agreement that $16,500 should be allowed for this head of damage. 16 There was a claim for the cost of replacement of pool heating. The plaintiff was claiming a sum in the order of $30,000 and the defendant was prepared to allow a sum in the order of $8,000. Ultimately, nothing was said in opposition to the allowing of the sum of $11,000. Accordingly, that sum is allowed for this head of damage. 17 There was a claim for an allowance for tradesman costs. It was put as being an allowance for those additional costs that would be incurred to maintain the extra home modifications. Necessarily, this claim was dependant on what happened in relation to the claim for home modification costs. 18 This claim was said to be additional to a head of damages which has already been dealt with. This was a claim in the sum of $94,688 for future handyman/home maintenance assistance. A sum of $64,000 has already been allowed in respect of that claim. 19 It is put in the alternative ($100,981.51 or $72,706.69 - $78,765.58). Further details may be found in the plaintiff's written submissions (paragraphs 3.1, 3.4 and 3.5). 20 The defendant says that nothing should be allowed for this claim and I agree. I am not satisfied that the plaintiff has made out a case for any such additional head of damages. 21 Neither the material nor the argument advanced in support of the claim satisfy me that there is any basis for the making of the allowance that is sought. 22 There is a claim for the additional costs associated with the defendant having an extra telephone and the power costs relating thereto. This is a small claim and it has been the subject of little argument. The sum of $3,949 is sought. Although there is no dispute as to the quantum of the claim, the defendant says that the evidence does not justify the allowing of any sum for it. In my view, the plaintiff has failed also to satisfy the court of an entitlement to this claim. Accordingly, nothing is allowed for it. 23 There remains the question of the GST allowance. Some submissions were made concerning this head of damage. Ultimately, the course was adopted of deferring this question further until findings had been made in relation to the other heads of damage. It is a matter which should be capable of resolution between the parties themselves. If this does not happen, perhaps it may have to be referred elsewhere for resolution. 24 I now return to the matter of home modification costs. In dealing with this matter, care must be taken to avoid overlapping. Certain items which may fall within this area have now been the subject of special allowance. 25 The plaintiff has special requirements. As I have already said, what suitable modification may be required to any home acquisition involves a number of imponderables. It is an exercise in guesswork and speculation. It would be unrealistic to expect that any acquisition will be suitable in all respects to his needs. The probability is that some modification will be required. What that may be is an imponderable. There will be contingencies that cannot be foreseen. There will probably be a need for some special facilities. Any modifications may not be done for some indeterminate time in the future. These matters simply throw up further imponderables. 26 The quantification of this head of damage is a task that I find to be extraordinarily difficult. It is made even harder when the parties adopt such extreme positions. Ultimately, the court is left to exercise its judgment. The result is necessarily arbitrary. Doing the best that I can in the circumstances, I allow a global sum of $50,000 for this head of damages. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.