Hoblos v Alexakis

[2021] NSWCA 126

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hoblos v Alexakis [2021] NSWCA 126

Hearing dates:

7 August 2020

Decision date:

23 June 2021

Before:

White JA at [1];
McCallum JA at [57];
Davies J at [195]

Decision:

(1) Appeal allowed.

(2) Set aside the orders of the District Court of 20 December 2019.

(3) Direct that within 28 days each party provide written submissions on the assessment of damages in accordance with these reasons, including as to whether damages can be assessed by this court or whether their assessment should be remitted to the District Court.

(4) Any submissions in reply are to be provided within seven days thereafter.

(5) Respondent to pay the costs of the appeal to date.

Catchwords:

TORTS – General principles – Damages – Where task of assessing evidence of major depressive disorder complicated by evidence of exaggeration or malingering – Whether plaintiff entitled to any damages

Legislation Cited:

Civil Liability Act 2002 (NSW), s 33

Civil Procedure Act 2005 (NSW), ss 56, 60

Motor Accidents Compensation Act 1999 (NSW), Pt 3.4, ss 83, 84, 126, 131

Uniform Civil Procedure Rules 2005 (NSW), rr 51.18(1)(e), 53.51(5)(a).

Cases Cited:

Abalos v Australian Postal Commission (1990) 171 CLR 16

Brown v Lewis [2006] NSWCA 87

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Harriton(by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan (2004) 59 NSWLR 694; [2004] NSWCA 93

Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Jones v Hyde (1989) 63 ALJR 349

Lloyd v Thornbury [2019] NSWCA 154

Nominal Defendant v Smith [2015] NSWCA 339; (2015) 73 MVR 257

Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72

Category:

Principal judgment

Parties:

Khaled Hoblos (Appellant)
Nick Alexakis (Respondent)

Representation:

Counsel:
R McIlwaine SC (Appellant)
K Rewell SC (Respondent)

Solicitors:
McInnes Wilson Lawyers NSW (Appellant)
Hall and Wilcox (Respondent)

File Number(s):

2020/14206

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

20 December 2019

Before:

Priestley SC DCJ

File Number(s):

2018/347191

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Hoblos was injured in a motor vehicle accident in 2015. The respondent was at fault and liability was admitted. The insurer agreed to meet medical and related expenses until February 2018, when a doctor retained jointly by both parties reported his opinion that Mr Hoblos was demonstrating “abnormal illness behaviour”. The insurer stopped payments following the receipt of that report. Mr Hoblos brought proceedings in the District Court. The primary judge (Priestley SC DCJ) found that whilst Mr Hoblos may have some kind of injury or disability arising from the accident, his unreliability as a historian of his symptoms and as a witness meant that damages could not be quantified on any rational…