WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NSW [1989] NSWCA 234

WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MAHONEY JA and ROGERS AJA 9 and 10 August 1989, 10 August 1989 [1989] NSWCA 234

Appeal from District Court — Assessment of Damages — Appeal upheld because trial judge acted on basis not appearing in evidence — General damages increased — No question of principle. ORDERS 1. Appeal allowed and judgment set aside. 2. Substituted judgment for the appellant for $15,000, such judgment to take effect from 9 November 1985. 3. Respondent to pay the costs of the appeal.

Mahoney JA In 9 November 1985 the plaintiff was injured in a motor vehicle accident. He was then aged fourteen years. The defendant has not contested its liability to damages. On 18 May 1988, in the District Court at Forbes, his Honour Judge Mahoney awarded the plaintiff $7500 damages. The only claim was for general damages: the plaintiff made no other claim.

The plaintiff has appealed to this Court on the ground that the damages are appealably low.

The plaintiff's injuries were minor. In the report of Dr Laksito, which his Honour accepted, they were stated as:

"Scalp laceration approximately 2 cm long in the left parietal area

Puncture wound over the right patella

Laceration of the left knee approximately 0.5 cm long

Tender and bruised right 1st metacarpo-phalangeal joint

Bruising and contusion over the left iliac crest."

He did not lose consciousness. He was taken to Forbes District Hospital and steri-strips were applied to his head and knee. He was allowed to go home.

The only injury of substance which has been in question in the appeal is that relating to the plaintiff's right knee. It is accepted that, prior to the accident, the plaintiff had hypermobile patellae. After the accident Dr Mutton, whose reports his Honour accepted, said that the plaintiff "seems to be suffering from bilateral chondromalacia of his patellae'". The plaintiff said that this had not prevented him engaging in his normal activities, including the playing of rugby football. But the result was that from time to time he suffered pain in the right knee. The length of the pain had been variously stated, by the plaintiff in evidence and to different doctors: his Honour adopted what had been told to Dr Mutton, namely, that it lasted about ten seconds.