MACKIE v THE NOMINAL DEFENDANT [1990] NSWCA 116

MACKIE v THE NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 27 April 1990, 27 April 1990

[1990] NSWCA 116

Clarke JA There are two appeals before the Court arising out of a judgment given by JudgeHerron in the District Court on Friday 11 November 1988. In that judgment his Honour dealt with two claims which were brought by Janiece Catherine Mackie whom I shall call "the plaintiff' for the sake of convenience.

The first related to a claim for damages in respect of injuries that she received in a motor vehicle accident on 27 March 1984. In the case of that claim his Honour entered judgment for the plaintiff for $54,972. The second related to another claim arising out of a motor vehicle accident in which the unfortunate plaintiff was involved and this occurred on 2 February 1987. In that case his Honour awarded judgment for the plaintiff in the sum of $16,698.10.

The plaintiff herself is the appellant in relation to the first claim. She contends that the damages awarded were inadequate. The respondent is the appellant in respect of the second judgment having somewhat belatedly, as a defensive measure, filed in this Court a notice of appeal asserting that the damages awarded in the second instance were excessive.

During the hearing of the appeal counsel for the defendants, because both the defendants were represented by the same counsel, accepted that if the first appeal was dismissed he would not press the other appeal and he made it quite plain that the latter appeal was a defensive one. In the event I think that all I should say is that I am not persuaded that the damages awarded in respect of the second accident were excessive and I would be disposed to dismiss that appeal. The amount awarded was modest and even though it could not be said that the injuries were of great severity it does not seem to me that the amount was out of proportion to those injuries.