Allianz Australia Insurance Ltd v Elias (No 2) [2009] NSWCA 166

New South Wales Court of Appeal

CITATION: Allianz Australia Insurance Ltd v Elias (No 2) [2009] NSWCA 166

HEARING DATE(S): On the Papers

JUDGMENT DATE: 3 July 2009

JUDGMENT OF: Beazley JA at 1; Macfarlan JA at 2; Young JA at 8

DECISION: 1. Judgment for the respondent in the sum of $275,899.60. 2. In lieu of order 4 made on 29 May 2009, order the appellant to pay the respondent's costs of the proceedings, including the appeal, on a party and party basis up to 27 October 2008 and on an indemnity basis thereafter.

CATCHWORDS: TORTS - negligence - consequential orders - no issue of principle

CATEGORY: Consequential orders

PARTIES: Allianz Australia Insurance Ltd (Appellant) Roukoz Elias (Respondent)

FILE NUMBER(S): CA 40920/07

COUNSEL: K Rewell SC/B Smith (Appellant) D Toomey/T Jones (Respondent)

SOLICITORS: Sparke Helmore (Appellant) Stacks Goudkamp (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4722/03

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 14 December 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40920/07 DC 4772/03

BEAZLEY JA MACFARLAN JA YOUNG JA

FRIDAY 3 JULY 2009 ALLIANZ AUSTRALIA INSURANCE LTD v ELIAS (NO 2)

Judgment 1 BEAZLEY JA: I agree with the further reasons of Macfarlan JA. 2 MACFARLAN JA: The Court delivered judgment in this matter on 29 May 2009. In doing so, it directed the parties to bring in Short Minutes calculating the amount of the judgment to be awarded in favour of the respondent. With the leave of the Court, the parties lodged Written Submissions dealing with an issue between them as to the amount of the judgment. 3 The issue is as to whether in stating that the calculation of future economic loss was to be based upon a net loss per week of $300 for 37 weeks per year ([28]), the Court was taking into account the usual 15% discount for vicissitudes or whether it was contemplating that that discount remained to be made. 4 The manner in which the respondent's claim for future economic loss was calculated was set out in [18] of the judgment. The calculation assumed that the respondent would work full time for the remainder of his working life, that his net weekly wage loss was $590 and that it was appropriate to make the usual 15% discount for vicissitudes. In my judgment, I took the view that the respondent's assumptions as to full-time work and as to the amount of the net wage loss were not supported by the evidence. Rather, I concluded that the calculation should proceed upon the basis of a net loss per week of $300 for 37 weeks per year ([28]). I intended that, subject to these changes, future economic loss be calculated in the manner identified by the respondent. Therefore the usual 15% discount for vicissitudes needs to be made. 5 The parties are agreed that in this circumstance the appropriate figure for future economic loss is $150,215 and that judgment should be entered for the respondent for the sum of $275,899.60. 6 The parties are also agreed that there should be a variation to the costs order made on 29 may 2009 to take account of an offer of compromise made by the respondent. 7 As a result, I propose the following orders: