BOUGHTON v QUINN [1991] NSWCA 27

BOUGHTON v QUINN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and HANDLEY JJA 12 August 1991, 12 August 1991

[1991] NSWCA 27

DAMAGES — quantum — the requirements of s79 of the Motor Accidents Act 1988 emphasise the necessity for appellate courts to intervene only if satisfied that the amount awarded by a judge is an wholly erroneous estimate of the injuries sustained and their consequences.

Samuels JA The facts in this matter are set out in the judgment under appeal and it is unnecessary to recapitulate them. The appeal, that is to say the amended notice of appeal which we gave leave to file this morning, first contended that the learned judge had erred in law in failing to assess the respondent's non-economic loss as required by s79 of the Motor Accidents Act 1988. However, it is now common ground that his attention was drawn to the requirements of that section and accordingly counsel did not persist in that ground of appeal.

The second ground of appeal contended that there was a further error in Judge Shadbolt's judgment in that he failed to take into account certain medical evidence suggesting that part of the respondent's complaints were due to a spinal deformity which had preceded the injuries sustained in the accident.

I think it fair to say that although there is some substance in that ground of appeal its effect must be very limited bearing in mind the evidence of the respondent herself, whom the learned judge accepted as a witness of transparent truth, that this back condition had been wholly or almost wholly asymptomatic before the accident.

That leaves the question whether the sum of $60,000 for non-economic loss assessed by reference to the requirements of s79 of the Act is excessive. There is no doubt at all in my opinion that the learned judge was perfectly right to say that these injuries had had a devastating effect upon the respondent's life. She was, although 77 years of age at the time of the accident, active, independent, able to walk and able to drive and occupy herself productively in various community works. She can do none of this now.