MARSLAND v ANDJELIC [No 3] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 8 February 1994, 25 May 1994 [1994] NSWCA 195 DAMAGES — measure of — personal injuries — motor vehicle accidents — statutory compensation — non economic loss — 'a most extreme case" — Motor Accidents Act 1988, s79(3) — amount of statutory compensation — whether should be increased pursuant to amendments to Act — whether referable date date of original judgment or date of reassessment by Court of Appeal — respondent seeks leave to reargue applicable amount — held: Leave refused. Marsland by his Tutor the Protective Commissioner of New South Wales v Andjelic (1993) 31 NSWLR 162 (CA) confirmed. ORDERS Leave refused to the respondent to reargue the question whether the statutory amount payable pursuant to s80 Motor Accidents Act 1988 is the amount applicable at the date of reassessment by the Court of Appeal and not the amount applicable at the date of the judgment set aside. Kirby P I agree with Meagher JA. Mahoney JA In the terms of my judgment in this appeal, the present questions do not arise for decision. If it were necessary for me to decide them, I would agree with the judgments of Kirby P and Meagher JA. Meagher JA The plaintiff, Mr Marsland, suffered a most severe motor car accident the consequences of which were to ruin his life. That accident was caused by Mr Andjelic's negligence. On 4 May 1992 Master Malpass directed entry of judgment in the plaintiff's favour for $2,025,259.00. The award included a component for statutory non economic loss under s79 and s80 of the Motor Accidents Act, the amount being 85% of the maximum relevant to a "most extreme case". This amount is indexed, so although the amount reads as being $180,000.00 in the original Act, it was $192,600.00 when the matter was first decided below and $198,000.00 when the final award was made by the Master. On 30 July 1993, the Court of Appeal, by Majority, increased the verdict to $2,438,336.00: Marsland v Andjelic (No 1) (1993) 31 NSWLR 162. The findings of fact were to lead to the conclusion that this was a "most extreme case", and so the award for the non economic loss was held to be 100% of the statutory maximum, not 85%. The applicable sum at that date was $211,000.00 and this was awarded to the plaintiff. On 24 December 1993 a second judgment was delivered in the matter, that parties having availed themselves of a right reserved to them to make further submissions as to interest and costs. The decision allowed, again by majority, interest on all items compensated for from the time of injury. The artificiality of statutory maximum awards was held to distinguish the situation in this case from the type of case to which the MSB v Gogic (1991) 171 CLR 657 principles apply, where double awards of interest need to be avoided. Short minutes of order giving effect to the decision were to be handed up within 28 days. Unfortunately, this was not to be. 2 UNREPORTED JUDGMENTS The matter now comes for judgment for a third time in the Court of Appeal because the respondent had sought leave to re open the argument as to which was the relevant date for applying the indexed statutory amount, and the answer to the application was not contained in the judgment in Marsland (No 2) (unreported, Supreme Court of New South Wales, Court of Appeal, 2 November 1993). In Marsland (No 1) it was held that the Court was sitting by way of a rehearing pursuant to s75A(5) of the Supreme Court Act. It was also held that "the maximum amount to be awarded for the purposes of the Act is that at the time of judgment, not injury. Thus, if the court were to uphold the appeal and were required to reassess the appellant's damages the maximum amount to be applied, to re assessment, would be $211,000." (at 168). It is convenient here to note that the indexed amount now effective is $212,000.00 as it was in Marsland (No 2). The Court is not disposed to re open the point so recently decided. Leave is refused. Leave refused to the respondent to reargue the question whether the statutory amount payable pursuant to s80 Motor Accidents Act 1988 is the amount applicable at the date of reassessment by the Court of Appeal and not the amount applicable at the date of the judgment set aside. Counsel for the Appellant: Dr AS Morrison SC Instructed by: Michell Sillar McPhee Meyer Counsel for the Respondent: GR Petty Instructed by: Government Insurance Office of New South Wales