Zurich Australian Insurance Limited v Elizabeth
Pellegrino; Elizabeth Pellegrino v NRMA Insurance Australia
Ltd  NSWSC 1114
Supreme Court of New South Wales 1
Where a claimant has suffered injuries in multiple accidents
and there is significant overlap between the losses caused by the
various accidents, the damages should be calculated on an overall
basis and then apportioned between the various tortfeasors and/or
The opportunities for successfully challenging a CARS
Assessment on the basis of jurisdictional error remain very
The claimant was injured in three motor accidents occurring in
1987, 2002 and 2005. The claimant sought damages pursuant to the
Motor Accidents Compensation Act 1999 (the
Act) in relation to the 2002 and 2005 accidents,
such claims being the subject of simultaneous assessment by the
same claims assessor. The Assessor assessed damages as a whole then
apportioned the damages between the pre-existing conditions, the
first insurer and the second insurer.
The claimant suffered neck and back injuries following the 1987
accident which resulted in ongoing losses up to the subsequent
accidents. The Assessor deducted 15% from the total damages to
account for the loss incurred in the 1987 accident. The Assessor
found that the 2002 accident aggravated the claimant's
pre-existing conditions but the 2005 accident took her injuries to
'a new level of intensity'. The Assessor found the claimant
also suffered a psychological injury in the 2005 accident and was
unable to return to her previous work duties. The Assessor
apportioned the remaining damages 15% to the first insurer and 85%
to the second insurer. The Assessor considered this approach
appropriate due to his finding that there was significant overlap
between the various accidents and the claimant's losses.
The first insurer filed a summons in the Supreme Court
submitting that the Assessor had erred in his approach to assessing
damages, claiming that he should have made independent assessments
of damages in each claim. The second insurer did not agree that
there was any error in the assessment. The claimant filed a summons
seeking that the certificate of assessment in relation to the
second insurer be set aside only if the certificate of assessment
against the first insurer was set aside.
In scrutinising the Assessor's approach the Court considered
a number of cases in which damages had to be apportioned between
consecutive tortfeasors 2. The Court also referred to
Luntz, Assessment of Damages for Personal Injury and Death
3 wherein it is stated
"If both tortfeasors are
before the Court, it is probably best to assess the total damages
as though there was only a single tort and then to apportion the
loss to the respective tortfeasors according to one or the other of
At paragraph 43 the Court stated:
"From these cases, it can be
seen that where a further injury results from a subsequent accident
which would have occurred had the plaintiff been in normal health
but the damage is greater because of the aggravation of the earlier
injury the damage resulting from the injury should be treated as
the defendant's negligence. The overall damages can then be
calculated and apportioned between the
The Court found there was no error of law in the Assessor's
determination and dismissed the summonses.
This decision confirms an approach to assessment of damages that
may be taken in complicated cases involving consecutive accidents
or pre-existing conditions when there is a significant overlap
between the injuries and resulting losses. Where it is possible to
disentangle the losses arising from the consecutive accidents or
pre-existing conditions, independent assessments should be made of
each accident. Insurers should be aware that they bear the
evidential onus of disentangling the pre-existing injuries from
those arising in their accident.
This decision also serves as a further example of the difficulty
insurers face in establishing jurisdictional error and challenging
the outcome of CARS Assessments.
1. Harrison AsJ
2. State Government Insurance Commission v Oakley (1990)
Aust Torts Reports 81-003; Barbaro v Gambacorta 6 MVR 99; DNM
Mining Pty Ltd v Barwick  NSWCA 137; Government Insurance
Office of NSW v Aboushadi  NSWCA 396; Insurance Australia
Limited trading as NRMA Insurance v Helou  NSWCA
3. 4th ed, paragraphs [2.6.8] and [2.6.9]
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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