Axiak v Pezzano [No 2]

[2002] NSWCA 107

CITATION:	AXIAK v PEZZANO [NO 2] [2002] NSWCA 107
FILE NUMBER(S):	CA 40317/01
HEARING DATE(S):	17 April 2002
JUDGMENT DATE:	17 April 2002
PARTIES :	Stella Axiak - Appellant Josephine Pezzano - Respondent
JUDGMENT OF:	Sheller JA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8609/98
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	M B Williams/J Harris - Appellant CRR Hoeben SC - Respondent
SOLICITORS:	Laurence & Laurence - Appellant Connery & Partners - Respondent
CATCHWORDS:	Interest on past loss of income after deduction for dependency
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	-
DECISION:	1. Appeal allowed; 2. Verdict and judgment of the Court below set aside; 3. In lieu thereof verdict and judgment for the appellant in the sum of $1,439,586.25; 4. Of this verdict, the sum of $368,125.00 is apportioned to the benefit of Jordan Dimitri Ternovy, an infant, the son of the plaintiff and the late Ivan James Ternovy; 5. In accordance with the Damages (Infant's and Persons of Unsound Mind) Act 1929 (NSW) the respondent is to pay into Court the said sum of $368,125.00 to be paid out to the Public Trustee on trust for the said Jordan Dimitri Ternovy until the attainment of his majority on 6 July 2011; 6. The respondent is to pay the appellant's costs of the proceedings in the Court below save that the appellant shall not have, and shall pay the respondent's costs thrown away by virtue of the adjournments of 6 and 13 October 2000; 7. The respondent is to pay the appellant's costs of the appeal; 8. The respondent is to pay the appellant's costs in the Court of Appeal before Sheller JA on 17 April 2002.

CA 40317/01
DC 8609/98

SHELLER JA

Wednesday, 17April 2002

AXIAK v PEZZANO [NO 2]

Judgment

1 SHELLER JA: In this appeal judgment was given by the Court on 20 March 2002. The parties were given leave to put submissions about interest and about costs. The matter came before me today to deal with those questions. The parties agreed that in the absence of Justice Mathews overseas I, sitting alone, should now decide the questions before the Court.

2 There is agreement between the parties as to the form of the costs orders that should be made and I will say no more about them except that the order will be made in accordance with that agreement. The outstanding issue is on whether or not the plaintiff is entitled to interest on past loss of income after deduction for dependency. The amount involved is agreed to be $60,086.25. The debate turns upon section 73(4)(a)(iv) of the Motor Accidents Act 1988.

3 On 4 October 2000, the first day of the trial, the defendant made an offer in settlement of the proceedings of $1,000,000, plus costs. This offer was not taken up. In the result, the trial Judge, her Honour Judge Gibb, awarded damages in a sum less than $1,000,000 which had consequences in the costs order her Honour made.

4 In this Court, we arrived at the conclusion that her Honour had erred in her approach and found that the damages awarded to the plaintiff should be in the sum of $1,379,500 without taking account of the claim now made for interest.

5 The subsection of the Motor Accidents Act to which I have referred, provides, relevantly, that on past loss of income interest is not payable unless the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the Court is more than 20 per cent higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.

6 There is, of course, no question that the amount of damages now proposed by this Court is more than 20 per cent higher than the offer made by the defendant on 4 October 2000. The only question is whether the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. I have been told from the bar table, and this is not denied, that the plaintiff had furnished her particulars which remained unaltered on 24 August 2000.

7 Mr Hoeben SC, who appears for the defendant respondent, has pointed out that the plaintiff put her claim on economic loss in reliance upon comparable earnings in three different ways, all of which were rejected by the trial Judge and all of which were rejected in this Court. The substance of the increase in the amount of damages awarded for economic loss depended upon the error in approach of the trial Judge in calculating the amount of past economic loss and future economic loss. Her Honour overlooked that, in the circumstances of this case, one would expect a continuum of the assessed amount for the two periods involved.

8 Bearing this matter in mind and the argument put by Mr Hoeben, I am quite satisfied that the difference between the offer made on 4 October and the amount found by this Court to be the appropriate amount of damages payable by the defendant indicates that the offer was so low as to be unreasonable. There is nothing before me to suggest that on the material available to the defendant when the offer was made an appropriate offer or a reasonable offer would have been higher than that in fact made. As is pointed out, this is largely a discretionary matter, it is a matter to an extent of the impression.

9 My impression, despite the arguments of Mr Hoeben, is that the amount of the offer was unreasonable having regard to the information available to the defendant when it was made. Accordingly, in my opinion, the plaintiff is entitled to $60,086.25 by way of interest on past loss of income after deduction for dependency. The order of the Court will take account of that additional amount.

10 In large measure, there is agreement as to the form that the order should take but in order to ensure that the calculation is correct the appellant will bring in short minutes of order by handing them in to my Associate.

Can that be done today, Mr Williams?
WILLIAMS: Yes, your Honour.

HIS HONOUR: Sometime during the course of today. And then the order of the Court will be made in accordance with those short minutes, which I assume will be agreed.

HOEBEN: Yes.

WILLIAMS: We do seek costs of today but that probably would be comprehended by the order of the appeal. For abundance of caution, your Honour, may we include those in the short minutes?

HIS HONOUR: The respondent will pay the appellant’s costs of today’s application.

ORDERS

1. Appeal allowed;
2. Verdict and judgment of the Court below set aside;
3. In lieu thereof verdict and judgment for the appellant in the sum of $1,439,586.25;
4. Of this verdict, the sum of $368,125.00 is apportioned to the benefit of Jordan Dimitri Ternovy, an infant, the son of the plaintiff and the late Ivan James Ternovy;
5. In accordance with the Damages (Infant’s and Persons of Unsound Mind) Act 1929 (NSW) the respondent is to pay into Court the said sum of $368,125.00 to be paid out to the Public Trustee on trust for the said Jordan Dimitri Ternovy until the attainment of his majority on 6 July 2011;
6. The respondent is to pay the appellant’s costs of the proceedings in the Court below save that the appellant shall not have, and shall pay the respondent’s costs thrown away by virtue of the adjournments of 6 and 13 October 2000;
7. The respondent is to pay the appellant’s costs of the appeal;
8. The respondent is to pay the appellant’s costs in the Court of Appeal before Sheller JA on 17 April 2002.
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