GOVERNMENT INSURANCE OFFICE OF NSW v LARGE [1991] NSWCA 113

GOVERNMENT INSURANCE OFFICE OF NSW v LARGE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and MEAGHER JJA 4 March 1991, 4 March 1991 [1991] NSWCA 113

APPEAL — DAMAGES — GENERAL DAMAGES — IMPAIRMENT OF EARNING CAPACITY — NO QUESTION OF PRINCIPLE INVOLVED.

Clarke JA The respondent sued the appellant claiming damages for injuries received when she was knocked over by a vehicle on a boat ramp at Tuross Lakes on 4 or 5 March 1987. At the trial before his Honour Judge Levine, on 11 May 1988, liability was in issue. His Honour determined the question of liability in the respondent's favour and in this appeal no question has been raised in regard to that matter.

His Honour assessed the damages, to which the respondent was entitled, in the sum of $71,453.30 which was made up of $70,000 general damages, out of pocket expenses $953.20 and $500 for each physiotherapy and medical treatment. The appellant has challenged this assessment, contending that it is beyond the sound exercise of judicial discretion.

The attack was mounted in two ways. First, it was said that the award of $70,000 general damages was beyond all reasonable bounds. Secondly, it was said that his Honour had failed to take account of a number of relevant matters and had made other mistakes so that in the end his judgment was vitiated because of a failure correctly to appreciate the factors which required consideration.

In addition, the respondent has cross appealed, contending that his Honour was in error in rejecting her claim in respect of an impairment of earning capacity.

It is convenient, initially, to deal with the claims made by counsel for the appellant that his Honour had made a number of specific mistakes. In the first instance counsel directed the Court's attention to the evidence of the respondent, that she was suffering from severe headaches and continual neck pain and asked the Court to compare that evidence with evidence of her husband, which was indicative of somewhat lesser troubles and the evidence of two doctors.