GAY WEFNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 283

GAY WEFNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 5 September 1991, 5 September 1991 [1991] NSWCA 283

DAMAGES — Motor vehicle collision — assessment of liability out of pockets agreed at $1470.00 — trial judge (Downs DCJ) disbelieves plaintiff — enters judgment for defendant appeal — Held: (Meagher JA; Kirby P and Mahoney JA agreeing) (1) Having regard to the recorded agreement to an assessment, the trial judge had erred in entering judgment for the defendant.. Wilton vy The Commonwealth, Court of Appeal, unreported 21 March 1990; (1990) NSW JB 28; Silvas v Government Insurance Office of New South Wales Court of Appeal, unreported 28 May 1990; (1990) NSWLR JB 71 applied; (2) It was not possible for the Court of Appeal to proceed to reassessment in the circumstances; (3) New trial ordered. COSTS — suggestion of consent to allowing appeal for grievous error and retrial — declined — indemnity costs refused comments by Mahoney, JA on the desirability of the course adopted.

Meagher JA In this case the plaintiff, Mrs Werner, claimed damages for injuries she said she had sustained in a rear end motor vehicle collision which occurred in Randwick on | February 1985. Although no admissions were made in the pleadings, when the case came on for hearing counsel for the defendant (the Government Insurance Office) announced that liability was admitted, and the matter proceeded for assessment only. His Honour found a verdict for the defendant and in a carefully considered judgment found that the plaintiff's evidence was without value, that the plaintiff was a person whose word could not be believed. He based this on various grounds, all of them ultimately having to do with demeanour. His Honour also found that the alleged symptoms complained of by the plaintiff were all subjective.