SYMONS v CERRUTO [1990] NSWCA 198

SYMONS v CERRUTO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY (1) P, MAHONEY (2) AND CLARKE (3) JJA 21 July 1990, 17 October 1990

[1990] NSWCA 198

DAMAGES — personal injuries — general damages — brain damage — remedial high school teacher suffers serious memory loss — inability to remember facts in teaching and social circumstances — necessity to keep notes to prompt memory — other multiple abrasions — scars — dental and jaw injuries — trial judge awards $50,000 — held: (per Mahoney and Clarke JJA; Kirby P dissenting) The sum awarded was not so low as to justify intervention by the Court of Appeal. Reference made to the advantages enjoyed by the trial judge. Miller v Jennings (1955) 92 CLR 190; Moran v McMahon (1985) 3 NSWLR 700 referred to.

DAMAGES — future medical expenses — possibilities of incurring — proper approach to awarding damages — uncontested evidence suggests various possible future operative treatment of temporo mandibular joint dysfunction — trial judge awards $2,500 — held: (per Mahoney and Clarke JJA; Kirby P dissenting) The award was open to the judge on the evidence notwithstanding contrary medical evidence and the acceptance of the truthfulness of the plaintiff who said she would have the operations. Malec v JC Hutton Pty Ltd (1990) 64 ALJR 316, 318 referred to.

APPEAL — Court of Appeal — damages appeal — discussion by Mahoney JA of the proper approach to a review of a damages award — consideration of the advantages of the trial judge — Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 (HL); Miller v Jennings (1955) 92 CLR 190; Skelton v Collins (1966) 115 CLR 94; and Fitch v Hyde Cates (1982) 150 CLR 482 discussed.

Supreme Court Act 1970, s75A(5).

Kirby P Before the Court is a plaintiff's damages appeal which the defendant resists. The defendant seeks to uphold the assessment of the trial judge (Whealy A-DCJ) or alternatively, by notice of contention, asserts that over compensation of the plaintiff on one head of damages outweighs any under compensation on others.