Guner v Sydney Opera House Trust & Ors [2001] NSWCA 192

New South Wales Court of Appeal

CITATION : Guner v Sydney Opera House Trust & Ors [2001] NSWCA 192 FILE NUMBER(S) : CA 40356/00 HEARING DATE(S) : Friday 15 June 2001 JUDGMENT DATE : 15 June 2001

PARTIES : Gulsam Guner v Sydney Opera House Trust & Ors JUDGMENT OF : Beazley JA at 19; Grove J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 8844/97 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

COUNSEL : C. Evatt with C. McCullum (Appellant) A.P. Quinlivan (Respondent) SOLICITORS : Tsolakis (Appellant) Lyn Boyd (Respondent) CATCHWORDS : DAMAGES - COMPENSATION TO RELATIVES - NERVOUS SHOCK - QUANTUM - NO PARTICULAR POINT OF PRINCIPLE LEGISLATION CITED : Compensation to Relatives Act 1897 DECISION : Appeal Allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40356/00 BEAZLEY JA GROVE J

Friday 15 June 2001 GULSAM GUNER v SYDNEY OPERA HOUSE TRUST & ORS JUDGMENT 1 GROVE J: This is an appeal arising out of a hearing in the District Court before his Honour Judge Puckeridge QC. The appeal is limited to a challenge by a disappointed plaintiff against the quantum of damages. His Honour was asked to deal with two actions which were pleaded as causes in the originating process as ultimately amended. 2 The first action was a representative action brought pursuant to the Compensation to Relatives Act 1897 by the appellant, particularised as being on her own behalf and on behalf of two dependent children of her deceased husband. One child, Umit, was the child of a previous marriage and the other, Unal, was the son of the appellant and the deceased. Those children were born respectively on 10 February 1986 and 1 March 1992. The accident which caused the death occurred on 14 June 1995. The deceased was at the time aged 35 years. 3 As I have observed this appeal is limited to challenge against the assessment of damages by his Honour in respect of two causes of action, the second being an independent claim by the appellant for damages for nervous shock. In the course of the hearing below a conclusion was apparently reached that the interests of the infant persons entitled pursuant to the Compensation to Relatives Act cause of action would be more advantageously served were they to continue to receive benefits under Workers Compensation legislation rather than a portion of damages assessed under the Compensation to Relatives Act. 4 In the court below, apparently by consent, his Honour expressed himself as dismissing the infant claimants (particularised pursuant to the Compensation to Relatives Act) from that action. We do not have before us the full transcript and in particular we do not have the transcript arising out of which the children were "dismissed from the action". There is a note in transcript which we do have that counsel appearing for one of the defendants below remarked in response to the suggestion that there would be a discontinuance of the claim by the infants, "I am not sure whether as a matter of law that withdrawal can occur". 5 Given the material presently before the Court and the absence of argument it is not appropriate in this appeal to investigate whether the observation of counsel was correct, although for my part I consider that it has some force. The purpose of recording these remarks is to note that the circumstance that the Court is proceeding to deal with this appeal relating to quantum should not be taken as implied endorsement of what occurred below, particularly in the event that at some future time either of the infants who were "dismissed from the action" is advised to take any steps in respect of that circumstance. 6 Having recorded that matter I turn to the issues in the appeal. The challenge to the assessment of damages pursuant to the Compensation to Relatives Act was in the event limited to one ingredient of his Honour's assessment. This limitation followed an observation by counsel for the appellant that certain concessions made below by junior counsel were such that it had to be conceded that challenges to other ingredients could not successfully be pursued. 7 The one matter that was pursued related to his Honour's assessment of the amount for loss of support between the date of death and the date of trial. In this regard his Honour had stated, "I find that as at the date of his death an amount of $325 per week was available for the support of the plaintiff and Unal Guner. That was the nett weekly earnings of the plaintiff for the financial year ending 30 June 1994." 8 It was argued that his Honour's observation was incorrect in that a copy income tax return in evidence showed that for the relevant year the deceased's nett taxable income was $19,796 and it therefore followed that the weekly earnings should be calculated as $381 per week in lieu of $325 per week. The error in that submission arises out of the circumstance that it assumes that there is no deduction for income tax from the nett figure of taxable income. There is no assessment in the evidence for the relevant year but there was tendered an assessment for the preceding year when the deceased's taxable income had been in the vicinity of $29,000. The conclusion was therefore open to his Honour that the earnings of the deceased would have been subject to income tax to some degree although the figures do not permit this to be done with accounting precision. 9 For my part I am not persuaded that his Honour fell into error in selecting the figure of $325 per week as a guide for nett purposes and the consequent assessment of the loss of dependency. I would therefore dismiss the appeal in relation to the assessment of damages upon the Compensation to Relatives Act cause of action. 10 I turn to the second cause of action which sought damages for nervous shock. His Honour assessed these in the sum of $17,500. It was pointed out that his Honour had been invited provisionally to assess damages pursuant to the Motor Accidents Act as well as at common law for a reason which is no longer relevant. However his provisional assessment pursuant to that Act was that the plaintiff's loss should be estimated proportionately as 15 per cent of a most serious case. Given the relevant figure for maximum loss the proportion would result in a calculated figure of $40,950 but this would be subject to the statutory reduction resulting in a nett award (if the Act were applicable) of $18,950. 11 It should be observed that the capped figure set for non-economic loss damages pursuant to the Motor Accidents Act and like statutes does not purport to be a reflection of an assessment of what is fair and reasonable in the common law sense and I would not regard the mathematical observation as relevant to an assessment as to whether or not his Honour's conclusion as to the correct amount of damages representing fair and just compensation at common law was sustainable or otherwise. 12 The claim of the appellant was that she was suffering a pathological grief reaction as a result of her husband's death and that this went beyond the ordinary grief that would be felt by any human being who lost a close loved one. There was ample evidence to support this claim and his Honour accepted it. He came to the conclusion that the plaintiff had suffered and was continuing to suffer to some degree from depression as a result of pathological grief reaction. 13 There was evidence that she was attending a Turkish speaking psychiatrist, Dr Akyol, who was prescribing an anti-depressant medication for her called Zoloft. She had commenced to take this at the rate of three capsules per day but this had been reduced to one per day. She was at the time of the hearing, on her evidence, still taking this medication and it is to be observed that the hearing was some five years after the death. She made complaints of sleep disturbance and other symptoms of depression. 14 His Honour found that her grief reaction was abnormal and was a direct result of the death of the deceased. In his concluding remarks on this topic in the judgment his Honour said that he had taken into account a statement attributed to the plaintiff when she spoke to a Dr Dinnen that as at March 1999 she rated herself as 80 per cent of normal. His Honour accepted Dr Dinnen's opinion that the plaintiff would still require psychiatric management for the next year or two and that her long term adjustment would always be limited by her loss. 15 Counsel for the respondent on the appeal candidly acknowledged that the assessment of $17,500, given the totality of the evidence on the topic, would have to be regarded as near the bottom of any appropriate range. 16 In my view it is below the bottom of the range but particularly for the reason that I would accept his Honour's finding that there will always be some limitation to the appellant's adjustment. She is a comparatively young woman and the element of permanence requires reflection. She has been on medication for a considerable period of time and on the findings of his Honour this is likely to continue for a significant period. It follows then that during a very long period after the death of her husband the appellant has been suffering significant symptom and disability as a result of this pathological grief reaction. 17 I conclude that this Court should intervene and reassess those damages. Although I have reached that conclusion I would also add that although the symptoms appear to be of longstanding they are in the scale of things moderate. Necessarily assessment of damages are matters of impression but, as I have said, I have come to the conclusion that given the overall picture (which was scarcely in dispute here or in the court below) the sum of $17,500 is below the range which would represent reasonable compensation for all that the plaintiff has suffered and will suffer. I would reassess the plaintiff's damages on this cause of action in the sum of $30,000. 18 Accordingly I would propose that the appeal be allowed and that orders made substituting the sum of $30,000 for the assessment of $17,500 on the cause of action for nervous shock. 19 BEAZLEY JA: I agree. Yes, what do you want to do about costs? I should be much more specific Mr Quinlivan, what application do you have if any about costs?