CITATION: FAI ALLIANZ INSURANCE LTD v LANG [2004] NSWCA 413 HEARING DATE(S): 10/09/2004 JUDGMENT DATE:
16 November 2004JUDGMENT 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.25BCASES 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 485PARTIES :
FAI Allianz Insurance Limited - Appellant
Debbie Marie Lang - RespondentFILE NUMBER(S): CA 40004/2004 COUNSEL: S. Campbell SC and A. Capelin - Appellant
J.M. Ireland QC and R. Foord - RespondentSOLICITORS: 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
TUESDAY 16 NOVEMBER 2004SANTOW JA
BRYSON JA
YOUNG CJ in Eq
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…
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- Case
- [2004] NSWCA 413
- Decision Date
CaseChat Overview and Summary
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
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Evidence
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Decision
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Ratio Decidendi
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