ZAPPIA v GOVERNMETN INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 293

ZAPPIA v GOVERNMETN INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY JJA and Hope AJA 6 February 1991, 25 February 1991

[1991] NSWCA 293

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 plaintiffs credibility affected by that conclusion — Held: New trial necessary.

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.

The plaintiff has filed a notice of appeal. The form of the notice of appeal refers to both proceedings but the errors alleged relate to the judgment given in respect of the first accident, namely, that for $49,411.28.

In assessing the damages to be awarded to the plaintiff his Honour took into account the following:

Out-of-pocket expenses $1460.60 Sick pay refundable by the plaintiff 5820.00 Past economic loss 27655.00 Interest on past economic loss 5945.83 General damages 25000.00 $65881.43