Imbree v McNeilly [No 2] [2008] HCA 47

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

Matter No S43/2008

PAUL ANTHONY IMBREE APPELLANT

AND

JESSIE McNEILLY & ANOR RESPONDENTS

Matter No S392/2007

JESSIE McNEILLY & ANOR APPLICANTS

AND

PAUL ANTHONY IMBREE RESPONDENT

Imbree v McNeilly [No 2]

McNeilly v Imbree [No 2]

[2008] HCA 47

26 September 2008

S43/2008 & S392/2007

ORDER

Matter No S43/2008

1. In place of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 July 2007 and 23 July 2007 order: + 1. appeal dismissed and cross-appeal allowed; 2. set aside the judgment entered on 22 August 2006 and in its place order that:

(i) the plaintiff's damages, before reduction for contributory negligence, be assessed at $11,323,622.46;

1. the plaintiff's damages be reduced by 30 per cent on account of his contributory negligence; 2. the plaintiff have judgment for $7,926,535.72 with costs of the proceedings at first instance on the ordinary basis up to and including 22 March 2006, and thereafter on an indemnity basis; 3. the defendants pay to the plaintiff interest on the judgment calculated up to 12 September 2008 in the sum of $875,000 and thereafter until payment at the rate of $1,100 per day; 4. the defendants have credit in the sum of $3,744,060.84;

(c) the appellants and cross-respondents (Jessie McNeilly and Qantas Airways Ltd) pay the costs of the respondent and cross-appellant (Paul Anthony Imbree) of the appeal and the cross-appeal to the Court of Appeal on an indemnity basis.

1. Further order that the costs of the appeal to this Court are to be assessed on an indemnity basis.

On appeal from the Supreme Court of New South Wales

Representation

A S Morrison SC with M R Hall and A J Stone for the appellant in S43/2008 and the respondent in S392/2007 (instructed by Turner Whelan)