Kaszubowski v McGuirk [2008] NSWCA 219

Kaszubowski v McGuirk [2008] NSWCA 219

The primary judge's findings on the respondent's psychiatric condition, care needs and pre-accident impairments were open on the evidence, including the accepted evidence of Mrs Burns and the opinions of Dr Webster, Dr Robertson and Dr Edwards. The rejection of Professor Mattick's evidence was open to the trial judge. The assessment of gratuitous care for the next 10 years was permissible because it was open to find that Mrs Burns would continue to provide that care, and s 128 of the Motor Accidents Compensation Act 1999 applied. The cross-appeal failed because 24-hour care at commercial rates was not established, the deduction for pre-accident care needs was open, and the proposed...

Jurisdiction
Australia
Judgment Date
12 September 2008
Procedural Posture
Appeal and Cross Appeal in Motor Accident Personal Injury Damages Proceedings / New South Wales Court of Appeal From District Court Assessment of Damages
Outcome
Appeal and cross-appeal each dismissed with costs.
Legal Topics
['personal Injury Damages' 'past and Future Attendant Care' 'gratuitous Care' 'commercial Care Rates' 'expert Evidence' 'fresh Evidence on Appeal' 'appellate Review of Damages']
['torts' 'negligence' 'damages' 'motor Accidents' 'evidence'] ['personal Injury Damages' 'past and Future Attendant Care' 'gratuitous Care' 'commercial Care Rates' 'expert Evidence' 'fresh Evidence on Appeal' 'appellate Review of Damages']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Motor Accident Personal Injury Damages Proceedings / New South Wales Court of Appeal From District Court Assessment of Damages

Legal Issues

  1. 1 ['Whether the District Court awards for past and future care were manifestly excessive.' "Whether the primary judge erred in giving insufficient weight to the respondent's pre-accident cerebral palsy, intellectual impairment and need for support." 'Whether the primary judge erred in rejecting or giving limited weight to expert evidence, including the evidence of Professor Mattick and Dr Maguire, and in accepting evidence from Mrs Burns and other experts.' "Whether the respondent's future care needs should have been assessed on a commercial basis rather than as gratuitous care to be provided by his mother for 10 years." "Whether further evidence from Mrs Burns' treating psychiatrist should be received on appeal."]

Ratio Decidendi

The primary judge's findings on the respondent's psychiatric condition, care needs and pre-accident impairments were open on the evidence, including the accepted evidence of Mrs Burns and the opinions of Dr Webster, Dr Robertson and Dr Edwards. The rejection of Professor Mattick's evidence was open to the trial judge. The assessment of gratuitous care for the next 10 years was permissible because it was open to find that Mrs Burns would continue to provide that care, and s 128 of the Motor Accidents Compensation Act 1999 applied. The cross-appeal failed because 24-hour care at commercial rates was not established, the deduction for pre-accident care needs was open, and the proposed...

Court Disposition

Appeal and cross-appeal each dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'Cross-appeal dismissed with costs.']