ZENATI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 294

ZENATI vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLY and CLARKE JA 30 July 1991, 7 August 1991 [1991] NSWCA 294

MOTOR VEHICLE INJURY — LOWER BACK INJURY Appeal from District Court — Motor vehicle injury — Plaintiff suffered lower back injury — Appeal on several grounds — Held: (1) Judge had erred in finding as to what plaintiff had said in evidence as to extent of her recovery; (2) New trial necessary; and (3) Not necessary to deal with other grounds of appeal.

Mahoney JA On 20 October 1985 Mrs Anna Zenati was injured in a motor vehicle accident when a vehicle ran into the back of the vehicle in which she was a passenger. She suffered minor injuries of various kinds. The major matter of which she complained with pain in her neck and her lower back and in her right leg.

In March 1990 her claim against the Government Insurance Office of New South Wales came before his Honour Judge Downs. The defendant admitted liability.

On 8 March 1990 his Honour awarded the plaintiff $11,517, made up of $10,000 for general damages and $1,517 for out-of-pocket expenses.

Mrs Zenati has appealed to this Court against his Honour's judgment. The grounds of appeal, variously phrased, suggest three things: that the damages awarded were appealably inadequate; that his Honour erred in law in failing to give sufficient reasons for his judgment; and that the trial miscarried because of, as it is now conventionally described, apprehended bias on the part of the learned judge.

In my opinion the judgment should be set aside and there should be a new trial upon the first ground.

It is not necessary, in order to determine this issue, to detail the facts at length and, as a new trial is to be ordered, it is expedient that I not do so. It is sufficient to say that -the essential or one of the essential injuries which, on the plaintiff's case, she suffered in the accident was an injury to her lumbar spine. One of the medical witnesses, Dr Caspary, found that, as the learned judge said, she had "pre-existing degenerative condition of L3, L4, LS levels of her spine". And, it was suggested, the accident had exacerbated that condition or, at least, had caused her to have symptoms from the condition which previously she had not had.