RTA v CREMONA [2001] NSWCA 338

RTA v CREMONA [2001] NSWCA 338

The correct dependency percentage for Mrs Cremona is 71 per cent rather than the 63 per cent used by the trial Judge, discount for vicissitudes applicable to Mrs Cremona should be raised to 9 per cent to account for the chance that the marriage might not have survived, and this discount should also apply to the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 November 2001
Procedural Posture
Appeal / Post Trial, Judgment Delivered, Orders for Further Submissions and Hearing
Outcome
Appeal allowed in part; cross-appeal allowed in part; matter adjourned for further submissions on costs and orders.
Legal Topics
['compensation to Relatives' 'assessment of Dependency' 'superannuation Damages' 'vicissitudes and Contingencies' 'interest on Damages' 'bulk Billing Practice' 'remarriage Prospects']
['tort Law' 'personal Injuries' 'damages'] ['compensation to Relatives' 'assessment of Dependency' 'superannuation Damages' 'vicissitudes and Contingencies' 'interest on Damages' 'bulk Billing Practice' 'remarriage Prospects']

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Procedural Posture

Appeal / Post Trial, Judgment Delivered, Orders for Further Submissions and Hearing

Legal Issues

  1. 1 ['Appropriate dependency percentage for damages' 'Calculation of loss of superannuation benefits' 'Allowance for bulk billing practice change' 'Discount for vicissitudes including drug relapse and marriage survival' 'Deduction of superannuation payment under s3(3)(b) of Compensation to Relatives Act 1897' 'Interest on past losses']

Ratio Decidendi

The correct dependency percentage for Mrs Cremona is 71 per cent rather than the 63 per cent used by the trial Judge, discount for vicissitudes applicable to Mrs Cremona should be raised to 9 per cent to account for the chance that the marriage might not have survived, and this discount should also apply to the superannuation claim. The deduction of the $163,780 superannuation payment is valid and does not contravene s3(3)(b) of the Compensation to Relatives Act 1897, and the calculation method for loss of superannuation benefit based on expert evidence at an 11 per cent annual growth and 3 per cent discount rate is appropriate. The trial Judge should have allowed for the contingency that...

Court Disposition

Appeal allowed in part; cross-appeal allowed in part; matter adjourned for further submissions on costs and orders.

Orders

  • ['Parties to file and serve written submissions on costs by 4 pm on 27 November 2001.' 'Parties to bring in Short Minutes of the orders to be made in the appeal at 9.30 am on 30 November 2001.' 'Stand over the further hearing of the appeal to 9.30 am on 30 November 2001 for orders to be made.']