IAG Limited t/as NRMA Insurance v Damien Mares [2016] NSWSC 1792

Supreme Court New South Wales

Medium Neutral Citation: IAG Limited t/as NRMA Insurance v Damien Mares [2016] NSWSC 1792 Hearing dates: 3 November 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Jurisdiction: Common Law Before: Hall J Decision: The proceedings by way of Summons commenced on 1 June 2016 are dismissed. The plaintiff is to pay the defendant's costs of the proceedings. In the event that either party wishes to be heard further on the question of costs, I grant leave to apply in that respect. Catchwords: ADMINISTRATIVE LAW – first defendant injured in motor vehicle accident – personal injury damages assessed by claims assessor – alleged error in law in applying wrong legal test in assessment of future economic loss in that assessor failed to find first defendant suffered financial loss – alleged error in law by not setting out assumptions or sufficient assumptions on which award purportedly based, pursuant to s 126(3) of Motor Accidents Compensation Act 1999 – claims assessor's decision alleged to be legally unreasonable in that it was irrational, illogical and lacking in any intelligible justification – path of reasoning of claims assessor was evident from the Claims Assessor's reasons – relevant findings as to "assumptions" on which the award of "buffer" for future economic loss made – first defendant a credible witness – findings as to impairment of earning capacity made – buffer award damages was appropriate – no error of law demonstrated. Legislation Cited: Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388; [2000] NSWCA 352 Kallouf v Middis [2008] NSWCA 61 MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235; [2004] NSWCA 145; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Nominal Defendant v Lane [2004] NSWCA 405 Nominal Defendant v Livaja [2011] NSWCA 121 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Zahed v IAG Limited t/as NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55 Texts Cited: P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993) Category: Principal judgment Parties: IAG Limited t/as NRMA Insurance (Plaintiff) Damien Mares (1st Defendant) Alan Cowley (2nd Defendant) State Insurance Regulatory Authority (3rd Defendant) Representation: Counsel: Mr M Robinson SC with Ms J Gumbert (Plaintiff) Mr E Romaniuk SC with Mr D Hanna (1st Defendant)