Allianz Australia Insurance Ltd v Elias [2009] NSWCA 123

New South Wales Court of Appeal

CITATION: Allianz Australia Insurance Ltd v Elias [2009] NSWCA 123

HEARING DATE(S): 28 April 2009

JUDGMENT DATE: 29 May 2009

JUDGMENT OF: Beazley JA at 1; Macfarlan JA at 2; Young JA at 31

1. Appeal allowed in part. 2. Set aside the judgment entered in favour of the respondent in the sum of $323,929 and substitute a judgment in a sum calculated in accordance with the reasons for judgment. DECISION: 3. Order the parties within 7 days to bring in short minutes calculating the amount of the judgment to be awarded in favour of the respondent. 4. Order the respondent to pay one half of the appellant's costs of the appeal. 5. The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.

CATCHWORDS: TORTS - negligence - road accident cases - whether finding that respondent's reporting of symptoms substantially truthful was glaringly improbable - challenge to assessment of damages - past and future economic loss - reassessment by appellate court where primary judge's method of calculating loss not adequately disclosed

LEGISLATION CITED: Suitors' Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Kallouf v Middis [2008] NSWCA 61 Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 50 MVR 430

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