GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NICHOLLS [1991] NSWCA 119

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NICHOLLS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY JJA and WADDELL AJA 5 December 1990, 6 February 1991

[1991] NSWCA 119

DAMAGES — personal injuries — plaintiff a passenger thrown from swerving vehicle — suffered fracture of right foot — slight permanent injury but likelihood of arthritic degeneration in his fifties — appeal on all grounds — Held: (1) no error of fact on liability; (2) awards for general damages and future economic loss too high — no question of principle.

Priestley JA I have read Waddell AJA's reasons in this appeal and adopt his summary of the facts.

The opinion I have formed on the basis of that summary is that although the figures assessed by the trial judge for future economic loss and what have been called general damages are high, they are not so out of keeping with my understanding of "current general ideas of fairness and moderation'* as to warrant upholding the appeal.

I would dismiss the appeal with costs.

(* Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125, which this court has regularly held it is condemned to apply.)

Handley JA I agree with the reasons for judgment of Waddell AJA and with the orders he has proposed.

Waddell AJA The respondent was injured on 21 February 1985 when he fell out ofthe cabin of a Holden utility in which he was a passenger while it was being driven on a property in the Oberon district. In District Court proceedings before Graham DCJ he recovered damages for his injuries. The appellant has appealed on all grounds.

Liability.

The driver of the utility was William James Artery, who worked at the same factory as the respondent. He was taking his mother to the property. She was sitting in the centre of the bench seat and the respondent next to the passenger door. Mr Artery stopped at the entrance to the property where there was a conversation with the owner who was coming out. The vehicle then proceeded to the house. The driveway was a rough dirttrack. It was uphill to the house and was something over 150m long.