SABIC v PETHERAN [1988] NSWCA 134

SABIC v PETHERAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MCHUGH JJA 5 February 1988, 16 May 1988 [1988] NSWCA 134

DAMAGES — hospital notes not objective evidence of complaints of pain. DAMAGES — alleged errors of fact — no question of principle.

ORDER Appeal dismissed with costs. Samuels JA I agree with McHugh JA. Priestley JA I agree with McHugh JA.

McHugh JA The plaintiff in an action for damages for personal injuries appealsagainst a judgment of Master Sharpe. She alleges that as the result of a number of factual errors in his reasons damages of $1,000 awarded to her were inadequate.

At about 5.30 p.m. on the 11th July, 1984, the plaintiff was a passenger in a taxi which struck a vehicle owned by the defendant. After the accident she was treated at the Casualty Department of Canterbury Hospital. On the 24th August, 1983 the plaintiff had also been involved in a motor vehicle accident when she was a passenger in a vehicle which struck a pole. The proceedings before Master Sharpe were concerned with the accident of 17th July, 1984. The Master found that, although the plaintiff may have suffered "transient anxiety and perhaps a mild degree of discomfort", there was no change in her condition as it existed immediately before that accident.

The Master said that the plaintiff "presented as a pathetic, grotesque, pain-ridden individual who could not bear to sit normally on a seat". He explained the nature of her claim and the evidence in support of it as follows:

"The basis of the plaintiff's claim to aggravation and for exacerbation of pre-existing injury is to be found in the viva voce evidence of the plaintiff and Dr. Gronow, namely, that during a few days of in-patient treatment at Sydney Hospital in July 1984 the plaintiff felt slightly better than she had before.