SAID KATRIB v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1988] NSWCA 77

SAID KATRIB vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MCHUGH JJA 18 October 1988, 18 October 1988

[1988] NSWCA 77

DAMAGES — quantum — no question of principle. ORDER Appeal dismissed with costs.

Samuels JA As the facts are fully set out in the judgment of his Honour Judge Staunton, which is the judgment under appeal, I need not repeat them.

In short, the accident aggravated a pre-existing disc condition in the appellant's lower lumbar spine. The aggravation is said to have been a muscular and ligamentous one. There is no evidence that the accident caused any further damage by way of aggravation or otherwise to the pre-existing underlying disc pathology. The question for the learned trial Judge was the extent of the aggravation.

There was no medical evidence which was capable, in my view, of clearly establishing this critical issue. The appellant himself gave evidence but he was strongly cross-examined upon credit and the learned Judge formed an unfavourable view of his credibility, saying, amongst other things: "I think he has attempted to blame the subject accident for all or most of his subsequent problems." The learned Judge himself referred to the difficulty of isolating the extent of any aggravation from the autogenous progression of the pre-existing condition.

He awarded the appellant the whole of the out-of-pocket expenses: he said, "At the risk of being over-generous" I think, if I may say so, that he was over-generous, since the list of out-of-pockets includes items which seem to me to be related to treatment for the pre-existing underlying disc pathology and not to the aggravation However, it is not possible to infer from that act of generosity that the assessment of damages for pain and suffering and the like in the sum of $8000 should be increased.