GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ARANKI [1991] NSWCA 106

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ARANKI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 20 May 1991, 29 May 1991

[1991] NSWCA 106

DAMAGES — GENERAL DAMAGES — EXCESSIVE — NO QUESTION OF PRINCIPLE

Priestley JA I agree with Clarke JA.

Clarke JA The respondent was injured in a motor vehicle accident on 13 May 1985. She sued to recover damages in respect of those injuries and was successful before McDevitt DCJ who awarded her $100,000.00. In actual fact he assessed damages at $106,088.19 but because of the limits of the jurisdiction of the District Court he entered judgment for $100,000.

The two elements which made up the assessment of damages were general damages, which his Honour assessed at $100,000 and out-of-pocket expenses which were agreed at $6,088.79. The appellant has submitted that the award of $100,000 was out of all proportion or, to adopt the language used in Miller v Jennings, 92 CLR 190, at 197:

"The compensation assessed is so (excessive) as to be beyond the limits of what a sound discretionary judgment could reasonably adopt."

The appellant put its contentions in three ways. First, its counsel argued that on any view of the evidence the amount awarded was grossly excessive. Secondly, he submitted, that in any event the assessment was flawed by his Honour's erroneous view that it was likely or probable that the respondent would undergo surgery. Thirdly, it was said that his Honour had over-stated the effects of the accident upon the respondent and this error had led to an unsustainable award.

The respondent was born on 18 August 1941 and was 43 years old at the date of the motor vehicle accident and 48 at the date of trial. She was married in 1959 and came to Australia with her husband in 1964. At some unspecified time, which appears to have been either 1984 or 1985, her husband suffered a heart attack and became an invalid pensioner. The accident occurred on 11 May 1985 and the respondent did not immediately seek treatment. She did, however, consult her family doctor, Dr Nicholas, on 13 May 1985 complaining of pain in her neck, low back and legs. Her neck pain, also, she said, caused occipital headaches. X-rays taken at the doctor's request reported no significant abnormality in the neck but the lumbo sacral x-rays showed a retrolisthesis (backward slipping) of LS on the sacrum.