Cremona v RTA [2000] NSWSC 556

New South Wales Supreme Court

CITATION : Cremona v RTA [2000] NSWSC 556 FILE NUMBER(S) : SC W200075/94 HEARING DATE(S) : 14/4/99 - 25/5/99 JUDGMENT DATE : 20 June 2000

PARTIES : Minna Maarit Cremona Roads & Traffic Authority JUDGMENT OF : Dowd J at 1

COUNSEL : Mr B Toomey QC (P), Mr W Dodd SC Mr B Gross QC (D), Mr A Porthouse SOLICITORS : Corrs Chambers Westgarth Crown Solicitors CATCHWORDS : Compensation to Relatives - deceased's former drug abuse - likelihood of recidivism - widow's likelihood of remarriage and working - percentage of dependency - basis of calculating loss of income - superanuation calculation LEGISLATION CITED : Compensation to Relatives Act 1987 Phali v Commissioner for Railways 164-5 NSWLR 1545 at 1547 GIO of NSW v Cox (1976) 9 ALR 194 Allan v Commmonwealth (1980) 24 SASR 581 Cullen v Trappel (1980) 146 CLR 1 Whittaker v FCT (1998) 53 ALR 344 CASES CITED : Andrews v Grand and Toy Alberta Ltd [1978] 2 SCT 229 Bresatz v Przibilla (1962) 108 CLR 541 Martin v Owen (1992) Times 21 May 1992 Dominish v Astill (1979) 2 NSWLR 368 Jones v Schiffman (1971) 124 CLR 303 Todorivic v Waller (1981) 150 CLR 422 DECISION : Findings as to basis of calculation ; leave to argue further matters ; calculations to be submitted

IN THE SUPREME COURT OF NEW SOUTH WALES (COMMON LAW DIVISION)

DOWD J

20 JUNE 2000

No. W75 of 1994 - Minna Maarit Cremona -v- RTA Judgment 1 The plaintiff Minna Maarit Cremona, widow of the late Dr Louis Cremona who died on the night of 28 May 1993 as a result of a motor accident on the M3 expressway south of Wollongong commenced proceedings under the Compensation to Relatives Act 1987 ("the Act") on behalf of herself and their two infant children of the marriage against the driver of a truck ("the truck driver") as first defendant and the Roads and Traffic Authority ("the RTA") as second defendant. The defendants cross claimed for indemnity from each other. 2 At the relevant time Dr Cremona's car was travelling in a lane on the northbound carriage way of the expressway when it struck the rear of a large truck driven by the truck driver. At the time the RTA was performing roadworks on the southbound carriageway of the expressway, such works involving stripping the road surface of the southbound lane and loading the spoilage into trucks including that driven by the truck driver for the spoilage to be taken away for dumping. 3 Application was brought by the plaintiff for summary judgment in favour of the plaintiff against the RTA, as a result of which I ordered that the plaintiff have leave to enter summary judgment against the RTA on liability and that the hearing on assessment of damages be heard with the hearing of the truck driver concurrently with the hearing of the cross-action between the first defendant and the RTA and that the hearing be fixed for an available date in February 1999. 4 On further application to the Court on 16 October 1998 I ordered that "1.The plaintiff discontinue against the first defendant by consent. 2. That a separate trial of the action against the second defendant by the plaintiff occur. 3. That there be a separate trial of the cross claim between the cross claimant and the cross defendant. 4. That the action against the second defendant for assessment of damages be separately tried. 5. That the second defendant pay the plaintiff an interim payment of $800,000. 6. That the second defendant pay the plaintiff's costs of the application for interim payment and the costs of and incidental to the bias application." 5 The assessment was heard before me from 23 March 1999 to 16 April 1999, my decision was reserved subject to further written submissions being later filed. I was then asked to make a further interim payment under s.76E of the Supreme Court Act 1970 as a result of which I ordered the payment of a further two hundred thousand dollars, making $1,000,000.00 thus far paid to the plaintiff.