FAI Allianz Insurance Ltd v Lang - [2004] NSWCA 413

CITATION: FAI ALLIANZ INSURANCE LTD v LANG [2004] NSWCA 413

HEARING DATE(S): 10/09/2004

JUDGMENT DATE:
16 November 2004

JUDGMENT OF: Santow JA at 1; Bryson JA at 2; Young CJ in Eq at 40

DECISION: Appeal dismissed with costs [39]

CATCHWORDS: Damages - personal injury - not affected by Motor Accidents Act 1988 - review of awards of damages for: future economic loss where finding on life expectancy, with consideration of 15% discount for vicissitudes in view of intercurrent adverse health conditions: Home Care where evidence about services actually provided was unclear and damages were based on expert evidence of needs, not on actual care - Held, no error in assessment.

LEGISLATION CITED: Motor Accidents Act 1988 (NSW) s.72
Motor Accident Insurance Act 1994 (Queensland) s.55D
Supreme Court Rules 1970 Pt.51 r.40 and Pt.51AA r.25B

CASES CITED: Blundell v. Musgrave (1956) 96 CLR 73
Chung v. Anderson [2004] NSWCA 321
Graham v. Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Malec v JC Hutton Pty Limited (1990) 169 CLR 638
Matchan v Lyons [2003] NSWCA 384
Morgan v. Gibson (unreported, NSWCA, 6 June 1997)
Nominal Defendant (NSW) v Gardikiotis (1994) 19 MVR 307
Roads & Traffic Authority of NSW v Lolomanaia (2001) 34 MVR 249
Sharman v Evans (1977) 138 CLR 563
State of New South Wales v. Moss (2000) 54 NSWLR 536
Sullivan v. Gordon (1999) 47 NSWLR 319
Van Gervan v Fenton (1992) 175 CLR 327
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

PARTIES :
FAI Allianz Insurance Limited - Appellant
Debbie Marie Lang - Respondent

FILE NUMBER(S): CA 40004/2004

COUNSEL: S. Campbell SC and A. Capelin - Appellant
J.M. Ireland QC and R. Foord - Respondent

SOLICITORS: TL Lawyers - Appellant
Quirk Davidson & Easdown (city agent: Turner Whelan) - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4147/2003

LOWER COURT
JUDICIAL OFFICER : ANDREW ADCJ

40004 of 2004

SANTOW JA
BRYSON JA
YOUNG CJ in Eq
TUESDAY 16 NOVEMBER 2004

FAI ALLIANZ INSURANCE LIMITED v DEBBIE MARIE LANG

Judgment

1 SANTOW JA: I agree with Bryson JA.

2 BRYSON JA: The appellant FAI Allianz, which was the defendant in the District Court, appeals against judgment for $838,782.86 given by his Honour Acting Judge Andrew in the District Court at Sydney on 11 December 2003 in favour of the respondent Debbie Marie Lang, the plaintiff. Mrs Lang suffered very severe personal injuries in a motor accident on 4 July 2000 in a motorcar travelling westerly on the Gore Highway in Queensland driven by her late husband Barry Lang, who was killed in the accident. The appellant was sued as insurer of the vehicle, and admitted liability; the hearing before Andrew ADCJ related only to the assessment of damages. In the appeal the appellant filed a Schedule of Damages in accordance with Pt.51 r.40 and Pt.51AA r.25B of the Supreme Court Rules 1970 which indicates (in…

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.

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Details

Case: [2004] NSWCA 413
Decision Date: 16 November 2004

CaseChat Overview and Summary

FAI Allianz Insurance Ltd (appellant) appealed against a decision of the District Court of New South Wales awarding damages to Mr. Lang (respondent) for personal injuries sustained in a motor vehicle accident. The dispute concerned the assessment of damages, specifically future economic loss and the quantum of damages for home care services.

The primary legal issues before the Court of Appeal were whether the District Court judge erred in: (1) assessing future economic loss by applying a 15% discount for vicissitudes, considering the respondent's intercurrent adverse health conditions and life expectancy; and (2) awarding damages for home care services based on expert evidence of the respondent's needs, rather than the actual services provided.

The Court of Appeal, comprising Santow and Bryson JJA and Young CJ in Eq, found no error in the District Court's assessment. Regarding future economic loss, the court held that the 15% discount for vicissitudes was a reasonable and appropriate consideration given the respondent's pre-existing health conditions, which could impact his life expectancy and earning capacity. On the issue of home care, the court affirmed that damages could be awarded based on expert evidence of the respondent's future needs, even if the precise services provided to date were unclear, provided those needs were demonstrably attributable to the injuries sustained in the accident.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs [39]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	FAI ALLIANZ INSURANCE LTD v LANG [2004] NSWCA 413
HEARING DATE(S):	10/09/2004
JUDGMENT DATE:	16 November 2004
JUDGMENT OF:	Santow JA at 1; Bryson JA at 2; Young CJ in Eq at 40
DECISION:	Appeal dismissed with costs [39]
CATCHWORDS:	Damages - personal injury - not affected by Motor Accidents Act 1988 - review of awards of damages for: future economic loss where finding on life expectancy, with consideration of 15% discount for vicissitudes in view of intercurrent adverse health conditions: Home Care where evidence about services actually provided was unclear and damages were based on expert evidence of needs, not on actual care - Held, no error in assessment.
LEGISLATION CITED:	Motor Accidents Act 1988 (NSW) s.72 Motor Accident Insurance Act 1994 (Queensland) s.55D Supreme Court Rules 1970 Pt.51 r.40 and Pt.51AA r.25B
CASES CITED:	Blundell v. Musgrave (1956) 96 CLR 73 Chung v. Anderson [2004] NSWCA 321 Graham v. Baker (1961) 106 CLR 340 Griffiths v Kerkemeyer (1977) 139 CLR 161 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Matchan v Lyons [2003] NSWCA 384 Morgan v. Gibson (unreported, NSWCA, 6 June 1997) Nominal Defendant (NSW) v Gardikiotis (1994) 19 MVR 307 Roads & Traffic Authority of NSW v Lolomanaia (2001) 34 MVR 249 Sharman v Evans (1977) 138 CLR 563 State of New South Wales v. Moss (2000) 54 NSWLR 536 Sullivan v. Gordon (1999) 47 NSWLR 319 Van Gervan v Fenton (1992) 175 CLR 327 Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
PARTIES :	FAI Allianz Insurance Limited - Appellant Debbie Marie Lang - Respondent
FILE NUMBER(S):	CA 40004/2004
COUNSEL:	S. Campbell SC and A. Capelin - Appellant J.M. Ireland QC and R. Foord - Respondent
SOLICITORS:	TL Lawyers - Appellant Quirk Davidson & Easdown (city agent: Turner Whelan) - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4147/2003
LOWER COURT JUDICIAL OFFICER :	ANDREW ADCJ