Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Hearing dates:
31 January 2012
Decision date:
16 February 2012
Before:
McColl JA at 1; Basten JA at 10; Macfarlan JA at 66
Decision:
(1) Grant leave to appeal in respect of grounds 1, 3 and 4, subject to the applicant filing a notice of appeal in the form of the draft notice in the application book.
(2) Refuse leave to appeal in respect of ground 2.
(3) Dismiss the appeal.
(4) The applicant shall pay the respondent's costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
ADMINISTRATIVE LAW - error of law on the face of the record - inadequacy of reasons - application of Motor Accidents Compensation Act 1999 (NSW) s 126 to obligation to provide reasons
DAMAGES - torts - negligence - motor vehicle accident - future economic loss - damages for future domestic assistance on a commercial basis - whether finding that future domestic assistance will be obtained on a commercial basis is required
DAMAGES - torts - negligence - motor vehicle accident - future economic loss - use of buffer - whether precluded by Motor Accidents Compensation Act 1999 (NSW) s 126
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Case
[2012] NSWCA 13
Decision Date
CaseChat Overview and Summary
In *Allianz Australia Insurance Ltd v Kerr*, the New South Wales Court of Appeal considered an appeal by Allianz Australia Insurance Ltd against a decision concerning damages awarded to the respondent, Mr Kerr, following a motor vehicle accident. The primary dispute revolved around the adequacy of the reasons provided by the primary judge in relation to certain aspects of the damages assessment, particularly concerning future economic loss and the application of the *Motor Accidents Compensation Act 1999* (NSW).
The Court was required to determine whether the primary judge had erred in law by failing to provide adequate reasons for their findings regarding future economic loss, specifically in relation to the provision of future domestic assistance on a commercial basis and the use of a buffer in the damages calculation. A further issue concerned whether the primary judge's reasons were so inadequate as to constitute an error of law on the face of the record, thereby attracting the jurisdiction of the Court of Appeal.
The Court of Appeal, comprising McColl, Basten and Macfarlan JJA, granted leave to appeal on specific grounds relating to the adequacy of reasons and the application of section 126 of the *Motor Accidents Compensation Act 1999* (NSW). However, leave to appeal was refused on other grounds. The Court reasoned that while the primary judge's reasons could have been more detailed, they were not so inadequate as to constitute an error of law on the face of the record. The principles applied focused on the standard required for reasons to be considered legally sufficient, particularly in the context of statutory requirements for motor accident compensation claims.
Ultimately, the Court of Appeal dismissed the appeal, upholding the primary judge's decision. Allianz Australia Insurance Ltd was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.
Orders
Orders of the court
(1) Grant leave to appeal in respect of grounds 1, 3 and 4, subject to the applicant filing a notice of appeal in the form of the draft notice in the application book.
(2) Refuse leave to appeal in respect of ground 2.
(3) Dismiss the appeal.
(4) The applicant shall pay the respondent's costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]