Palmer v RTA & Ors [2002] NSWSC 34

New South Wales Supreme Court

CITATION : Palmer v RTA & Ors [2002] NSWSC 34 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20339/98 HEARING DATE(S) : 24/7/01-27/7/01, 31/7/01, 1/8/01-3/8/01, 6/8/01-9/8/01, 16/8/01, 27/8/01, 31/1/02,4/2/02 JUDGMENT DATE : 4 February 2002

Lisa Denise Palmer (Plaintiff) PARTIES : Roads and Traffic Authority of New South Wales (First Defendant) Council of the Shire of Evans (Second Defendant) Pioneer Road Services Pty Limited (Third Defendant) JUDGMENT OF : Wood CJatCL at 1

B Toomey QC with A Black (P) B Donovan QC with P A Regottieri (D1) COUNSEL : J E Maconachie QC with I R Pike (D2) I G Harrison SC with P S Braham (D3) P Hallen SC (6XD) Walsh & Blair (P) I V Knight (Crown Sol) (D1) SOLICITORS : Phillips Fox (D2) Corrs Chambers Westgarth (D3) Colin Biggers & Paisley (6XD) CATCHWORDS : NEGLIGENCE - calculation of damages. CASES CITED : Fox v Wood (1981) 148 CLR 438 DECISION : See paragraph 6.

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20339/98 WOOD CJ at CL

Monday 4 February 2002 PALMER V ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES & ORS

Judgment 1 Wood CJ at CL: Following delivery on 20 December 2001 of my reasons for proposed judgment in this matter, the parties have now prepared and provided an agreed damages schedule. This schedule records the itemised heads of damage in accordance with those reasons, as agreed by the parties, with the single exception of the head of damages concerning fund management. 2 Further submissions have been received in relation to that matter, it being submitted, by Mr Toomey QC for the plaintiff, that the damages should be assessed in a general way by reference to the decision in Gardikiotis and upon the basis that a strict application of that decision would sound in a sum in the order of $970,000, which would then be discounted by 50% to $485,000, in order to reflect the considerations identified at paragraphs 513 – 539 of my reasons for judgment. In coming to that figure the fund available for investment has been reduced so as to allow for the immediate capital outlay required for repayment of the Workers Compensation insurer, as well as for the items referred to in paragraphs 11.1a, 12a and 13 of the Agreed Schedule. 3 The defendants do not disagree with the arithmetic components employed for this calculation, but they submit that such an approach would not properly reflect the reasons for judgment. In order to do so they submit that the sum awarded under this head should be calculated by reference to an ongoing annual cost of $13,000 to reflect the fees of accountants or advisors calculated at the rate of $250 per hour, to which would need to be added the costs of preparing a taxation return. Mr Toomey QC does not require proof of those components, and accepts that, on this basis, it would be fair to assume an ongoing cost for fund management annualised at $13,000, which would then sound in a loss in the order of $300,000. 4 It is that sum which the defendants submit would be an appropriate sum to be awarded in respect of this head of loss. Mr Toomey, however, submits that there should be an additional sum added to it, by way of a buffer, to allow for the contingency that the plaintiff's condition may deteriorate, either permanently or for intermittent periods, such that she would not be able to participate at all in the management. If so, that would inevitably lead to an increase in the costs to be incurred in this respect. 5 There is some force in this submission, although equally there is force in the proposition that with the benefit of time and experience, particularly if a comprehensive and effective scheme for management is implemented, such that she may be able to occupy a greater role, or such that less contribution is required from her advisors. 6 Like all future losses in this case, an assessment of the damages to be awarded calls for a disquieting exercise in crystal ball gazing. It is next to impossible to predict the future in a case such as the present and the chances of any award for damages for future losses precisely matching the plaintiff's future needs are probably slight. However, doing the best I can, I consider that the proper approach is that advanced by the defendants, and I accordingly assess this head of loss in the sum of $300,000. It follows in those circumstances that there will be a verdict and judgment in favour of the plaintiff against each of the defendants in the sum of $16,347,477.91 made up as follows: - 1. General Damages $420,000 2. Economic Loss 2.1 Past Economic Loss Agreed:- $77,500 2.2 Future Economic Loss:- Agreed $475/wk to age 65 less 20% (contingencies) $454,708