Diamond v Simpson (No 1) [2003] NSWCA 67

Diamond v Simpson (No 1) [2003] NSWCA 67

The Court of Appeal allowed the appeal, reducing the award on various heads where it found the trial judge exceeded reasonable compensation, particularly in respect to future care, certain home modifications, additional vacation costs, and the Spastic Centre charges. The extension of Griffiths v Kerkemeyer to services by charitable institutions was not warranted without satisfaction of the criteria identified in Espagne. The Court distinguished between categories of gratuitous services and applied established appellate review of damages principles to adjust the compensation in line with legal and factual findings.

Parties
Appellant: Robert Diamond; First Respondent: Calandre Simpson by her Tutor William Charles Simpson; Second Respondent: Trustees of the Sisters of St Joseph
Jurisdiction
Australia
Judgment Date
07 April 2003
Procedural Posture
Personal Injuries Appeal / Court of Appeal Judgment
Outcome
Appeal allowed, cross-appeal dismissed.
Legal Topics
Assessment of Damages, Gratuitous Services, Attendant Care, Loss of Earning Capacity
Torts Damages Personal Injury Assessment of Damages Gratuitous Services Attendant Care Loss of Earning Capacity

Case Brief

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Parties

Robert Diamond

Appellant

Calandre Simpson by her Tutor William Charles Simpson

First Respondent

Trustees of the Sisters of St Joseph

Second Respondent

Procedural Posture

Personal Injuries Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the trial judge erred in the assessment of damages under various heads including loss of earning capacity, gratuitous services, future attendant care, home modification costs, therapeutic aids, vacation costs, costs of services from the Spastic Centre, and funds management.
  2. 2 Whether damages may be awarded for services rendered gratuitously by a charitable institution under Griffiths v Kerkemeyer.

Ratio Decidendi

The Court of Appeal allowed the appeal, reducing the award on various heads where it found the trial judge exceeded reasonable compensation, particularly in respect to future care, certain home modifications, additional vacation costs, and the Spastic Centre charges. The extension of Griffiths v Kerkemeyer to services by charitable institutions was not warranted without satisfaction of the criteria identified in Espagne. The Court distinguished between categories of gratuitous services and applied established appellate review of damages principles to adjust the compensation in line with legal and factual findings.

Court Disposition

Appeal allowed, cross-appeal dismissed.

Orders

  • Order of Whealy J set aside except as to costs.
  • Verdict for the first respondent for $10,998,692.