Allianz Australia Insurance Ltd v McGrath [2011] NSWCA 153

Allianz Australia Insurance Ltd v McGrath [2011] NSWCA 153

Both the appeal and cross-appeal were dismissed. The tribunal was required to avoid double compensation by, as best as could be determined, adjusting the subsequent award of general damages for mesothelioma to account for previously awarded damages for ARPD, but not necessarily by a strict deduction or by ignoring the prior award entirely; the approach of the primary judge disclosed no error of law.

Jurisdiction
Australia
Judgment Date
20 June 2011
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal and cross-appeal dismissed. Appellant to pay respondent's costs of the appeal and cross-appeal.
Legal Topics
['negligence' 'provisional Damages' 'further Damages' 'double Compensation' 'assessment of Damages']
['torts' 'damages' 'dust Diseases'] ['negligence' 'provisional Damages' 'further Damages' 'double Compensation' 'assessment of Damages']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the subsequent award of general damages should have been reduced by the allowance for general damages in the earlier award.' 'Whether the subsequent award of general damages should have been increased by excluding any provision made for general damages in the first award.']

Ratio Decidendi

Both the appeal and cross-appeal were dismissed. The tribunal was required to avoid double compensation by, as best as could be determined, adjusting the subsequent award of general damages for mesothelioma to account for previously awarded damages for ARPD, but not necessarily by a strict deduction or by ignoring the prior award entirely; the approach of the primary judge disclosed no error of law.

Court Disposition

Appeal and cross-appeal dismissed. Appellant to pay respondent's costs of the appeal and cross-appeal.

Orders

  • ['Dismiss the appeal.' 'Dismiss the cross-appeal.' "Order the appellant to pay the respondent's costs of the appeal and the cross-appeal."]