Simpson v Diamond & Anor [No 2] [2001] NSWSC 1048

Simpson v Diamond & Anor [No 2] [2001] NSWSC 1048

The plaintiff is entitled to interest on the value of past gratuitous services provided by the Spastic Centre; an offset is to be made for the value of private schooling not undertaken, reducing the compensation for these services. The plaintiff's damages are calculated accordingly. A plaintiff obtaining a judgment more favourable than a formal offer of compromise is entitled to indemnity costs from the date of the offer. The defendant's conduct did not justify displacing this consequence. The cross-defendant is entitled to party/party costs only, as the cross-claim, while unsuccessful, was not improperly brought. No special or additional order is made with respect to representation by...

Parties
Plaintiff: Calandre Simpson by her Tutor William Charles Simpson; First Defendant: Robert Diamond; Second Defendant/cross Defendant: Anor (including the hospital/second defendant/cross defendant)
Jurisdiction
Australia
Judgment Date
21 November 2001
Procedural Posture
Professional Negligence Proceeding / Post Trial Judgment and Orders
Outcome
Judgment for plaintiff against first defendant; plaintiff's discontinuance against second defendant; verdict for cross-defendant on cross-claim; orders as to costs.
Legal Topics
Damages Assessment, Interest on Damages, Indemnity Costs, Offer of Compromise, Cross Claims, Gratuitous Services, Costs Orders
Tort Law Professional Negligence Civil Procedure Damages Assessment Interest on Damages Indemnity Costs Offer of Compromise Cross Claims +2 more

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Parties

Calandre Simpson by her Tutor William Charles Simpson

Plaintiff

Robert Diamond

First Defendant

Anor (including the hospital/second defendant/cross defendant)

Second Defendant/cross Defendant

Procedural Posture

Professional Negligence Proceeding / Post Trial Judgment and Orders

Legal Issues

  1. 1 Whether interest should be awarded on past gratuitous services provided by the Spastic Centre
  2. 2 Whether a set-off should be allowed for the cost of private schooling against the claim for gratuitous services
  3. 3 Assessment and calculation of damages for care, education, and out-of-pocket expenses

Ratio Decidendi

The plaintiff is entitled to interest on the value of past gratuitous services provided by the Spastic Centre; an offset is to be made for the value of private schooling not undertaken, reducing the compensation for these services. The plaintiff's damages are calculated accordingly. A plaintiff obtaining a judgment more favourable than a formal offer of compromise is entitled to indemnity costs from the date of the offer. The defendant's conduct did not justify displacing this consequence. The cross-defendant is entitled to party/party costs only, as the cross-claim, while unsuccessful, was not improperly brought. No special or additional order is made with respect to representation by...

Court Disposition

Judgment for plaintiff against first defendant; plaintiff's discontinuance against second defendant; verdict for cross-defendant on cross-claim; orders as to costs.

Orders

  • Plaintiff to pay second defendant's (hospital's) costs upon discontinuance on a party and party basis.
  • Verdict and judgment for the plaintiff against the first defendant in the sum of $14,202,402.00.