Hoblos v Alexakis (No 2)

[2022] NSWCA 11

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hoblos v Alexakis (No 2) [2022] NSWCA 11

Hearing dates:

On the papers

Decision date:

10 February 2022

Before:

White JA at [1];
McCallum JA at [2];
Davies J at [72]

Decision:

(1) Judgment for the appellant in the sum of $593,157.76.

(2) Failing agreement as to costs, the parties to provide written submissions as to costs within 7 days for determination on the papers.

Catchwords:

TORTS — General principles — Damages — Requirement to assess damages following successful appeal — Whether assessment should be undertaken by Court of Appeal in circumstances where adverse credit findings made by primary judge — Where quantification of damages turns primarily on expert medical evidence — Proportionality and convenience

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60

Motor Accidents Compensation Act 1999 (NSW), s 126

Supreme Court Act 1970 (NSW), s 75A(6)

Cases Cited:

Amaca Pty Ltd v Latz; Latz v AmacaPty Ltd (2018) 246 CLR 505; [2018] HCA 22

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

Hoblos v Alexakis [2021] NSWCA 126

Category:

Consequential orders

Parties:

Khaled Hoblos (Appellant)
Nick Alexakis (Insurer)

Representation:

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

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

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):

2018/00347191

Judgment

1. WHITE JA: I agree with McCallum JA, for the reasons her Honour gives, that this Court can and should assess damages. I also agree with her Honour’s assessment of damages and the orders her Honour proposes.

2. McCALLUM JA: Khaled Hoblos appealed from a decision of the District Court rejecting his claim for damages for personal injury arising from a motor vehicle accident and entering judgment for the defendant. On 23 June 2021, we allowed the appeal and set aside the judgment: Hoblos v Alexakis [2021] NSWCA 126. It follows that Mr Hoblos is entitled to an award of damages. However, the primary judge did not undertake an assessment of damages in case of a successful appeal. Indeed, the reason the claim failed was that his Honour concluded it was not possible to quantify damages on any rational basis (owing to his Honour’s assessment that Mr Hoblos was unreliable both as a historian of his symptoms and as a witness). Accordingly, that assessment must now be undertaken.

Whether damages should be assessed by this Court

3. The parties agree that it would be preferable, if possible, for this Court to assess damages rather than order a new trial in the District Court. As I noted at [181] of the principal judgment, the costs of a second trial (on top of the costs of the first, and the appeal) would in all likelihood be disproportionate to the interest at stake: cf s 60 of the Civil Procedure Act 2005 (NSW).

4. In…