JOHN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1990] NSWCA 35

JOHN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and HANDLEY JJA 6 June 1990 [1990] NSWCA 35

DAMAGES — quantum appeal — motor vehicle injuries injuries to neck and low back — employer provides ex refrigeration mechanic with light/supervisory work — CT scan shows L4/5 disc protrusion — liability admitted — judge enters judgment for $6189, being $4000 general damages appeal — held: (1) (By the Court) Errors of fact finding warrant the setting aside of the judgment by the Court of Appeal; (2) (By the Court) The Court is able to proceed to a reassessment on the basis of the evidence at the trial; and (3) (By Mahoney JA; Handley JA concurring; Kirby P contra) There should be substituted a judgment in favour of the plaintiff in the sum of $12,189 (being $10,000 general damages) (per Kirby P contra) The sum of $24,189 should be substituted). Malec v JC Hutton Pty Ltd (1990) 64 ALJR 316.

APPEAL — error — fact finding — preference for one medical opinion of a witness qualified to give evidence over that of treating physician — matter determined on medical reports — observations by Kirby P on the desirability of reasons for such an opinion.

Kirby P The appellant, who was the plaintiff at the trial, brings an appeal tothis Court claiming that an award of damages made in his case was inadequate to the extent that this Court is authorised by law to set it aside and to substitute a different award.

It was agreed between the appellant and the respondent that, in the event that the Court were of the view that the judgment entered in the District Court by Downs DCJ was inadequate that this Court should proceed to its own assessment in accordance with the provisions of the Supreme Court Act.

A manual worker receives injury in a motor vehicle accident The appellant was born in 1959. He was thus twenty-nine years old at trial. He is now thirty-one years of age. He was a refrigeration mechanic. He had held that job for a period of eleven years. He described his work in evidence. It involved work in relation to the installation and repair of airconditioning. It was heavy work. It comprised lifting gas bottles, working in confined spaces and working at an elevation on roofs. It was otherwise work which required him to manoeuvre his back and his limbs and to show physical agility. He suffered the injuries, out of which the appeal arises, on 16 September 1985.