ELDERING v GOVERNMENT INSURANCE OFFICE NEW SOUTH WALES [1989] NSWCA 74

ELDERING vy GOVERNMENT INSURANCE OFFICE NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and PRIESTLEY JJA 23 August 1989, 23 August 1989 [1989] NSWCA 74

QUANTUM APPEAL — trial Judge's assessment of plaintiff's condition arrived at apparently without sufficient consideration of significant medical evidence — possibility of too much weight being placed on other medical evidence — plaintiff's credibility to some extent in question — no alternative to new trial. ORDER Appeal allowed with costs; judgment set aside, save order for costs; new trial to be had, limited to damages.

Priestley JA The principal ground of appeal in this case seems to me to be a good one and should lead to the setting aside of the judgment appealed against and to a new trial of the action in the district Court limited, of course, to damages.

As none of the other grounds foreshadowed in the Notice of Appeal could, in the circumstances of this case, lead to any better result for the appellant when taken in association with this first ground than a new trial and as also the argument as it has developed has been almost entirely confined to what I regard as the principal ground of appeal, I will confine myself to that ground only. Also, because as it seems to me this case requires a new trial, I will limit what I have to say to the minimum necessary to explain why I think the appeal should be upheld.

The appellant, the plaintiff in the proceedings below, was injured in a motor car accident on 28 May 1986 when she was twenty-eight. She was married with one child and working as a qualified nurse. Liability for the accident was contested at the trial and found in her favour. That matter is not in ques- tion in the appeal.

The appeal is brought on the ground that the damages awarded to the plaintiff were too low.