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Allianz Australia Insurance Ltd v Roger Ward

Allianz Australia Insurance Ltd v Roger Ward

Case [2010] NSWSC 720 30 November 2010

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CITATION: Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 October 2009

JUDGMENT DATE :
30 November 2010

JUDGMENT OF: Hidden J

DECISION: Certificate and determination of claims assessor set aside, matter remitted for re-determination by different assessor. Cross-claim dismissed.

CATCHWORDS: ADMINISTRATIVE LAW - Motor Accidents Compensation Act - CARS assessment of damages - errors of law in assessment of future gratuitous assistance, determination of retirement age for claim for future economic loss - prerogative relief sought - whether discretion to refuse relief should be exercised - whether entire assessment should be set aside

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Civil Liability Act 2002
Motor Accidents Act 1988
Social Security Act 1991 (Cth)
Supreme Court Act 1970
Justices Act 1902
Civil Procedure Act 2005
Suitors' Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Allianz Australia Insurance Ltd v Crazzi and Ors [2006] NSWSC 1090, 68 NSWLR 266
Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380
Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388, 44 MVR 261
Geaghan v D'Aubert [2002] NSWCA 260, 36 MVR 542
Cai v Zheng [2009] NSWCA 13
Insurance Australia Limited v Helou [2008] NSWCA 240
Goodman v Impact Hire Australia Pty Limited & Anor [2009] NSWSC 941
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, 239 CLR 531
Craig v South Australia (1995) 184 CLR 163
Lee v Yang [2006] NSWCA 214
Zurich Australian Insurance Limited v Motor Accidents Authority of NSW & Ors [2006] NSWSC 845
Alliance Australia Insurance Ltd v Ward [2009] NSWCA 264
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 288, 204 ALR 55
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597
Anderson v Judges of District Court NSW (1992) 27 NSWLR 701
Production Spray Painting and Panel Beating Pty Ltd v Newnham [No. 2] (1992) 27 NSWLR 659
Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497

PARTIES: Allianz Australia Insurance Ltd (Plaintiff)
Roger Ward (1st Defendant)
Motor Accidents Authority of New South Wales (2nd Defendant)
Allan Cowley (3rd Defendant)
Principal Claims Assessor, of the Motor Accidents Authority of New South Wales (4th Defendant)

FILE NUMBER(S): SC 2009/298074

COUNSEL: R Letherbarrow SC, M A Robinson & A Douglas-Baker (Plaintiff)
P Mahony SC & R E Quickenden (1st Defendant)

SOLICITORS: Sparke Helmore Lawyers (Plaintiff)
Michael Kerridge and Company (1st Defendant)
I V Knight, Crown Solicitor (2nd & 4th Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Tuesday 6 July 2010, Tuesday 30 November 2010
2009/298074 Allianz Australia Insurance Ltd

v

Roger Ward & Ors

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff, Allianz Australia Insurance Limited (“Allianz”)…

Grounds of appeal

[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.

Continue reading Allianz Australia Insurance Ltd v Roger Ward

Details

AGLC: Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC 720
Case: [2010] NSWSC 720
Decision Date: 30 November 2010

CaseChat Overview and Summary

In Allianz Australia Insurance Ltd v Roger Ward, the respondent, Roger Ward, sought compensation for injuries sustained in a motor accident. The dispute centred around the assessment of damages, particularly the calculation of future economic loss and the determination of retirement age. The case was heard in the Supreme Court of Queensland. The primary focus was on whether the Court of Appeal had made any errors in law during the assessment of future gratuitous assistance and the retirement age, which in turn affected the calculation of damages.

The legal issues the court had to decide involved whether the Court of Appeal had exercised its discretion to refuse relief appropriately and if the entire assessment of damages should be set aside due to these errors. The respondent argued that the Court of Appeal had misapplied the law in its assessment of future gratuitous assistance and the retirement age, which resulted in an underestimation of his entitlement to damages.

The court found that the Court of Appeal had indeed erred in its assessment of future gratuitous assistance and the determination of the retirement age. These errors were significant and affected the overall calculation of damages. The court exercised its discretion to refuse relief in this instance, as the errors were not minor but rather fundamental to the assessment. Consequently, the entire assessment was set aside, and the matter was remitted to the Court of Appeal for a fresh assessment in accordance with the correct legal principles.

The final orders of the court included setting aside the entire assessment of damages by the Court of Appeal and remitting the matter back for reassessment. The court emphasised the importance of correctly applying the law in such assessments to ensure that the injured party receives a fair and accurate determination of their entitlements.

Orders