GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS [1990] NSWCA 78

GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and HANDLEY JJA 9 and 10 April 1990, 18 December 1990 [1990] NSWCA 78

KEY WORDS: APPEAL — credibility — relevance of videotape evidence viewed on appeal EVIDENCE — credibility — whether videotape evidence contradicted oral testimony NEGLIGENCE — quantum Motor car accident — personal injuries — trial judge implicitly accepts plaintiff's oral testimony — videotape evidence of plaintiff dancing at wedding — assessment of damages. Held (per Mahoney and Meagher JJA, Handley JA dissenting): There was nothing in the videotape that demonstrated palpable error in trial judge's finding. Assessment of damages — minor arithmetical error.

Mahoney JA I agree with the judgment of Meagher JA.

Meagher JA This appeal arose out of a motor car accident which took place on 28 June 1985, in which the plaintiff, a taxi driver then aged 23 years, was injured in the head and the right knee. The defendant appeals on the issue of damages only, liability being conceded. His Honour Judge Pain DCJ awarded the plaintiff a verdict in the sum of $146,972.60. That sum had the following components:

1. Past economic loss $42,900.00 Interest thereon 9,009.00 2. Future economic loss 52,332.50 3. General damages 30,000.00 4. Fox v Wood component 2,464.34 5. Out-of-pocket expenses 10,266.76

The appellant's challenge is limited to the first two of those components.

Immediately after the accident the plaintiff was taken +o St George's Hospital where he was admitted for four to five hours and his symptoms were noted as being a tender forehead, occiput, cervical spine C2-C7 and right knee. He was then sent home with analgesics. His neck and right knee continued to be painful, and pain developed in his lower back, for which condition his general physician prescribed the use of a neck collar, analgesics and two weeks rest. He was referred to an orthopaedic surgeon. A month after the accident it was noted by his treating doctor that his back pain was getting worse, and that whilst his neck and right knee were still sore his neck movements had improved. He continued to complain of pain and disability in the neck, lower back and right knee with consequent inability to resume work. In November 1985 he was admitted to Castlewood Hospital at Petersham where the doctor performed a right medial meniscectomy and manipulation under anaesthetic of the cervical and lumbar spine with epidural injections. He was then discharged and advised to use crutches, but they did not improve his condition. He also complained of headaches and dizziness. In May 1988 he was again admitted to hospital for