Axiak v Pezzano [2002] NSWCA 65

Axiak v Pezzano [2002] NSWCA 65

The trial judge erred by not allowing for increases in the deceased's income in the assessment period and by incorrectly calculating the effect of probability on future earnings. The Court of Appeal recalculated damages for past and future income loss using a corrected approach consistent with findings on the likelihood of increased income, applied the same dependency rates, allowed for increased child care services, and upheld findings on handyman and other claims.

Jurisdiction
Australia
Judgment Date
20 March 2002
Procedural Posture
Civil Appeal / Appeal From District Court Judgment on Quantum
Outcome
Appeal allowed in part; damages increased and recalculated as specified.
Legal Topics
['compensation to Relatives Act 1897' 'assessment of Damages' 'loss of Income' 'dependency Rates' 'childcare Expenses' 'handyman Services' 'loss of Investment Opportunity']
['torts' 'compensation Law'] ['compensation to Relatives Act 1897' 'assessment of Damages' 'loss of Income' 'dependency Rates' 'childcare Expenses' 'handyman Services' 'loss of Investment Opportunity']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From District Court Judgment on Quantum

Legal Issues

  1. 1 ['Whether the trial judge adopted the correct approach in assessing past and future loss of income' 'Whether appropriate dependency rates were used' 'Whether calculation for loss of investment income was adequately supported by evidence' 'Assessment of damages for child care, boarding school, and handyman services']

Ratio Decidendi

The trial judge erred by not allowing for increases in the deceased's income in the assessment period and by incorrectly calculating the effect of probability on future earnings. The Court of Appeal recalculated damages for past and future income loss using a corrected approach consistent with findings on the likelihood of increased income, applied the same dependency rates, allowed for increased child care services, and upheld findings on handyman and other claims.

Court Disposition

Appeal allowed in part; damages increased and recalculated as specified.

Orders

  • ['Damages awarded to the appellant in the sum of $1,379,500 in lieu of the District Court award.' '$352,760 apportioned for the benefit of Jordan Ternovy, to be paid into Court and held in trust until his eighteenth birthday.' "Respondent to pay the appellant's costs."]