Hawchar bht Manal El Haj Dib v Diab (No 3); Dib v Diab (No 3)

Hawchar v Diab (No 3) [2022] NSWDC 231 concerned a motor vehicle accident in which the plaintiffs, Mrs El-Haj Dib and Manessa Hawchar, were injured and subsequently sued the defendant, Mr Diab, for damages. The case came before Dicker SC DCJ in the District Court of New South Wales. The central issue was whether payments made by the defendant’s insurer for medical expenses under Section 83 of the Motor Accidents Compensation Act 1999 (NSW) should be considered in determining the appropriate order regarding costs, particularly given that the plaintiffs obtained only modest damages and were unsuccessful on several significant issues.

The court had to determine the impact of the insurer’s payments on the plaintiffs' entitlement to costs and whether these payments should be factored into the assessment of a costs order. This required an examination of the statutory framework governing motor accident compensation and its interplay with common law principles on costs. The court also needed to balance the plaintiffs' success on some issues against their failure on others, in light of the relatively small damages awarded.

In delivering the judgment, Dicker SC DCJ considered the statutory provisions and relevant case law. The judge concluded that the payments made by the defendant’s insurer did not absolve the plaintiffs from their responsibility to pay the defendant’s costs where they were unsuccessful on significant issues, despite obtaining some damages. The court emphasised the importance of proportionality in costs orders, taking into account the modest nature of the damages awarded and the plaintiffs' partial success. Ultimately, the judge directed that the parties were to prepare agreed Short Minutes of Order consistent with the reasons for decision within seven days, allowing for potential applications on short notice and retaining the exhibit until further order.