Grosso v Deaton [2012] NSWCA 101

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Grosso v Deaton [2012] NSWCA 101 Hearing dates: 3 February 2012 Decision date: 20 April 2012 Before: McColl JA at [1]; Basten JA at [5]; Young JA at [48] Decision: (1) Allow the appeal and set aside the judgment and orders in the District Court. (2) Judgment for the appellant against the respondent in the sum of $413,670, such amount to be paid into court in the first instance, to be apportioned as to: (a) $187,100 in favour of Joshua Grosso; and (b) $219,200 in favour of Lachlan Davis. (3) The respondent to pay the appellant's costs in the District Court and in this Court. (4) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal. (5) Grant the parties leave to approach the duty judge in the Common Law Division on 7 days' notice for orders as to the disbursement of the fund. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES- Compensation to Relatives Act- single mother of two killed in motor vehicle accident- two sons subsequently resided with their respective fathers- whether the sons had suffered compensable loss- compensable loss is material loss as at the moment of death- entire family situation before and after death compared- additional care provided by a surviving parent after the death may be taken into account to offset the loss but not gratuitous services provided by other family and friends. Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59, 60 Compensation to Relatives Act 1897, s 4 Deserted Wives and Children Act 1901 Family Law Act 1975 (Cth), ss 66B, 66C Infants' Custody and Settlements Act 1899 Motor Accident Compensation Act 1999, ss 3, 128, 142 Uniform Civil Procedure Rules 2005, r 51.53 Cases Cited: Axiak v Pezzano [2002] NSWCA 65; 13 MVR 424 Baker v Dalgleish Steam Shipping Co [1921] 3 KB 481 Bazeley v Forder (1868) LR 3 QB 559 Chantler v Chantler (1906) 6 SR (NSW) 412 De Sales v Ingrilli [2002] HCA 52; [2003] HCA 16; 212 CLR 338 Henderson v Oswald [1965] WAR 54 Horton v Byrne (1956) 30 ALJ 583 Houareau v Bouyer (1990) Aust Torts Reports 81-044 The King v Henrietta L Greenhill (1836) 4 Ad & El 624; 111 ER 922 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Marsh v Absolum [1940] NZLR 448 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 Rawlinson v Babcock & Wilcox Ltd [1967] 1 WLR 481 Re Stojanovic (1990) 99 FLR 59; 13 Fam LR 849 Ruby v Marsh [1975] HCA 32; 132 CLR 642 Thompson v Mandla [1976] 2 NSWLR 307 Tong v Purdy (No 2) [1941] VLR 147 Wilson v Rutter (1955) 73 WN (NSW) 294 Category: Principal judgment Parties: Dallas Grosso as Executor of the Estate of the late Hayley Wheeler (Appellant) Matthew Deaton (Respondent) Representation: Counsel: