GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KELLY [1991] NSWCA 112

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES vy KELLY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 15 October 1991, 14 November 1991

[1991] NSWCA 112

DAMAGES — schizophrenia — motor vehicle accident — whether caused symptoms of acute schizophrenia — whether aggravated symptoms — plaintiff's medical reports read — defendant's medical witness called — judge prefers opinions of plaintiff's medical witnesses — opinions based on facts different from those proved at trial — basis of reception of facts — held: (1) The judge erred (a) in holding that the expert evidence supported a finding that the accident had caused (as distinct from exacerbated) the schizophrenia; and (b) In using the 3% tables as a guide to determining the award for impaired capacity; (2) Having regard to the differences between the evidence proved at trial and the factual bases for the plaintiff's medical experts' opinions, the Court of Appeal could not safely proceed to reassess damages. Ramsay v Watson (1963) 108 CLR 642; Paric v John Holland (Constructions) Pty Limited (1984) 62 ALR 85 consd; (3) Accordingly new trial limited to damages ordered.

Kirby P I agree with Clarke JA.

Clarke JA The respondent sued to recover damages in respect of injuries suffered by him in an accident on 10 October 1985 when a motor cycle upon which he was a passenger collided with another vehicle. The major physical injury suffered by him was a fracture of the left femur but he also claimed that the accident had caused or exacerbated a condition of schizophrenia from which he continued to suffer. Liability for damages was admitted by the appellant and the damages were assessed by Kirkham DCJ in the sum of $237,957.30. That amount was made up of the following components: $37,957.30 for past out of pocket expenses and loss of wages, $50,000 for general damages and $150,000 for the impairment of future earning capacity. The appellant has challenged the last two figures, complaining that they are excessive.