CITATION: Sakr v Mercantile Mutual Insurance [2000] NSWCA 266 revised - 26/04/2007 FILE NUMBER(S): CA 40843/99 HEARING DATE(S): 19/9/00 JUDGMENT DATE:
29 September 2000PARTIES :
Miled Sakr v Mercantile Mutual Insurance (Australia) LimitedJUDGMENT OF: Handley JA at 1; Fitzgerald JA at 2; O'Keefe AJA at 11
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :809/98 (Parramatta) LOWER COURT
JUDICIAL OFFICER :Robison DCJ
COUNSEL: Mr A McSpedden - Appellant
Mr C Hoeben - RespondentSOLICITORS: Turner Freeman - For Appellant
Sparke Helmore - For RespondentCATCHWORDS: Appeal - Motor vehicle accident - Damages - Significantly impaired - Relationship between significant impairment and non-economic loss - Relationship between non-economic loss and economic loss - Principles of assessment of damages - global approach - Adequacy of reasons for judgment - Amendment of District Court Order - Slip rule - Test for application of slip rule LEGISLATION CITED: Motor Accidents Act, 1988 Pt 6, s.68A(a), s.79, s.79(1B)
District Court Rules, Pt 39A r 31, Pt 17 r 10
Arbitration (Civil Claims) Act 1983, s.18(2)
O.XXVIII r 11 Rules of High Court of Justice, England
O 20 r 11 Rules of Supreme Court of Hong Kong
Supreme Court Act, 1958 (Vic) s.78
O 29 r 11 High Court RulesCASES CITED: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Arthur Robinson (Grafton) Pty Limited v Carter (1967-68) 122 CLR 649
Husher v Husher (1997) 197 CLR 138
Younie v Martini (CA (NSW) 21 March 1995, unreported)
Coulton v King (1947) 64 WN (NSW) 65
Pettit v Dunkley (1971) 1 NSWLR 374
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Public Service Board of NSW v Osmond (1986) 159 CLR 656
Soulemzis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Fritz v Hobson (1880) 14 Ch.D 542
Chessum v Gordon (1901) 1 QB 694
Barker v Purvis 56 LT 131
Re Inchcape, Craigmyle v Inchcape (1942) 1 Ch 394
Tak Ming Co Ltd v Yee Sang Metal Supplies Co (1973) 1 WLR 300
Brew v Whitlock (No.3) (1968) VR 504
Shaddock v Parramatta City Council (No 2) (1983) 151 CLR 591
Arnett v Holloway (1960) VR 22
The Commonwealth v McCormack (1984) 155 CLR 273
Barrell Insurances Pty Ltd v Pennant Hills Restaurant Pty Ltd (1983) 49 ALR 384
Hatton v Harris (1892) AC 547
Carter v Milson (1893) 10 WN (NSW) 9
Gould v Vaggelas (1983-85) 157 CLR 215DECISION: Appeal dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OFAPPEALNo: 40843/99
HANDLEY JA
FITZGERALD JA
O’KEEFE AJAFriday, 29 September 2000
MILED SAKR v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED
JUDGMENT1 HANDLEY JA: I agree with O’Keefe AJA.
2 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of O’Keefe AJA.
3 The appellant was involved in a comparatively minor collision which aggravated a pre-existing, but previously asymptomatic, degenerative condition in his back. As a result,…
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Details
- AGLC
- Sakr v Mercantile Mutual Insurance [2000] NSWCA 266
- Case
- [2000] NSWCA 266
- Decision Date
CaseChat Overview and Summary
Sakr v Mercantile Mutual Insurance concerned an appeal from a District Court decision regarding damages awarded to the plaintiff following a motor vehicle accident. The plaintiff, Sakr, had suffered injuries in the accident and sought damages from the defendant insurer, Mercantile Mutual Insurance.
The central legal issues before the Court of Appeal were the principles governing the assessment of damages for non-economic loss, particularly in circumstances where the plaintiff had suffered a "significantly impaired" injury. The court was also required to consider the relationship between the assessment of non-economic loss and economic loss, and whether a "global approach" to damages assessment was appropriate. Furthermore, the court examined the adequacy of the reasons provided by the trial judge and the application of the "slip rule" to amend a District Court order.
The Court of Appeal affirmed that the assessment of damages for non-economic loss, including pain and suffering, is a matter for the court's discretion, guided by established principles and relevant case law. The court reiterated that a "significantly impaired" injury warrants a substantial award for non-economic loss, but this must be assessed in conjunction with other heads of damage, including economic loss, to arrive at a just and proportionate global sum. The court found no error in the trial judge's assessment of damages and concluded that the reasons provided were adequate. The court also considered the application of the slip rule and determined it was not applicable in this instance.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
The central legal issues before the Court of Appeal were the principles governing the assessment of damages for non-economic loss, particularly in circumstances where the plaintiff had suffered a "significantly impaired" injury. The court was also required to consider the relationship between the assessment of non-economic loss and economic loss, and whether a "global approach" to damages assessment was appropriate. Furthermore, the court examined the adequacy of the reasons provided by the trial judge and the application of the "slip rule" to amend a District Court order.
The Court of Appeal affirmed that the assessment of damages for non-economic loss, including pain and suffering, is a matter for the court's discretion, guided by established principles and relevant case law. The court reiterated that a "significantly impaired" injury warrants a substantial award for non-economic loss, but this must be assessed in conjunction with other heads of damage, including economic loss, to arrive at a just and proportionate global sum. The court found no error in the trial judge's assessment of damages and concluded that the reasons provided were adequate. The court also considered the application of the slip rule and determined it was not applicable in this instance.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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