WISZNIOWSKI v W J KIMBER AND SON PTY LIMITED [1988] NSWCA 177

WISZNIOWSKI v W J KIMBER & SON PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, CLARKE JA and ROGERS AJA

26 July 1988

[1988] NSWCA 177

PRACTICE & PROCEDURE — appeal dismissed for want of prosecution — no question of principle

Samuels JA The primary matter before us is an appeal by a plaintiff whose action for damages for personal injuries was heard by Sinclair DCJ on 27 April 1978. The nature of the case was that the plaintiff had been involved in a motor vehicle accident on 14 April 1976; liability was admitted and the trial was therefore limited only to the assessment of damages.

The learned trial judge found, in short, that the plaintiff, the appellant as I will now call her, had sustained various soft tissue injuries and a mild concussion. She had, the learned judge thought, recovered from any organic consequences of the accident within twelve months after its occurrence, but at the date of trial, although she had suffered some emotional reaction to the accident, the learned judge took the view that he could not be satisfied that this emotional or psychological condition had been causally related to the accident for more than about eighteen months of its duration.

Accordingly he found that she was fit to resume work about a year after the accident. Based on those findings he assessed the plaintiff's damages in the sum of a little over $6,000, including the sum of $2,500 for pain and suffering and the like.

The appellant filed her appeal on 25 May 1978 complaining that the assessment of damages was inadequate. Thereafter gross delay supervened. We have had the benefit of a chronology prepared by the appellant and the simplest course to take is to annex it to this judgment. From that it will be seen that, in effect, the matter became moribund in about July 1978 when the matter was stood out of the Registrar's List when the date arrived for settling the index. Thereafter very little happened, I think it fair to say, in the appellant's camp and no steps were taken by the appellant of which notice was given or should have been given to the respondent.