ZAPPIA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 292

ZAPPIA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHOoNney JA, PRIESTLEY JA and Hope A-JA 6, 25 February 1991 [1991] NSWCA 292

Appeal from District Court — Damages in two motor vehicle accidents — Extent of plaintiff's injuries in issue — Judge accepted plaintiff as credible witness — Court of Appeal may come to a different conclusion or may set aside Judge's finding if Judge's assessment of credibility affected by a matter of fact or a conclusion as to facts shown to be erroneous — Judge's finding affected by his conclusion that "the bulk of the medical evidence is against the plaintiff' — Error as to the effect of "the bulk" of the medical reports — Conclusion as to the plaintiff's credibility affected by that conclusion — Held: New trial necessary.

Mahoney JA, Priestley JA and Hope A-JA. On 25 February 1991 the Court made the following orders in this appeal: 1. Judgment below set aside. 2. Proceeding No DC 33766/86 returned to the District Court for retrial. 3. Defendant to pay the costs of the first trial. 4. Plaintiff to pay the costs of the appeal. An error occurred in the form of Order 4: it should have read: 4. Plaintiff to have the costs of the appeal.

Counsel for the parties have been informed accordingly and have offered no objection to the correction of the error. Order 4 is therefore corrected to read:

4. Plaintiff to have the costs of the appeal.

Mahoney JA. The plaintiff was involved in two motor vehicle accidents: the first occurred on 4 February 1985 and the second on 23 August 1986. The defendant accepts that it is liable in damages in respect of each of these accidents.

The plaintiff sued the defendant for damages in two separate proceedings in the District Court. On 19 September 1988 his Honour Judge McLachlan heard the cases together and gave judgment for the plaintiff in respect of each accident as follows: in the first proceeding judgment for $49,411.28 and in the second proceeding $15,500.60.