THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SOUTHALL [1989] NSWCA 87

THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SOUTHALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA, KIRBY P and CLARKE JA 7 February 1989, 7 February 1989

[1989] NSWCA 87 DAMAGES — quantum — no question of principle

Samuels JA On 2 December 1985 the respondent, the plaintiff in the trial before McGuire DCJ, was hurt in a motor vehicle accident in which she sustained a whiplash injury and soft tissue damage to the area of the cervical spine. She developed a psychiatric response to the incident and its consequences which manifested itself in depression, extreme irritability and a phobic reaction to travelling in motor vehicles.

The learned judge, who accepted the respondent as a truthful witness who did not exaggerate her condition, awarded her damages for pain, suffering, loss of amenities and the like in the sum of $18,000 as to the past and $28,000 for the future. The trial, I interpolate, took place on 10 November 1987, round about two years after the accident occurred.

The defendant appeals, contending that that award of damages was excessive and represents an entirely erroneous estimate of the injuries and their consequences. Counsel has relied particularly upon passages in the transcript which undoubtedly, from the respondent's own evidence, concede that, as at the date of trial, she was, as she herself put it, "a lot better" than she had been immediately after the accident. Accordingly there is evidence of improvement but the problem is to assess its extent.

In particular the respondent was undergoing some form of psychotherapy or counselling which she found helpful and which enabled her to disclose her symptoms to a sympathetic hearer. The learned judge of course had not only to value the detriments which the respondent carried on to her trial but to evaluate the future, and in order to do so had to make some sort of assessment of the extent to which she might improve further. He ultimately concluded that the respondent, if she continued to undergo treatment for which he allowed in the assessment, would gradually improve, but felt that her problems would not totally resolve for quite some years to come.