WILLETT v GIO OF NSW [1991] NSWCA 285

WILLETT v GIO OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 1 July 1991, 1 July 1991

[1991] NSWCA 285 APPEAL — damages — personal injury — whether inadequate.

Priestley JA This appeal was conducted with brevity and moderation by both sides and I will try to emulate counsel in giving my reasons.

The question in issue in the appeal is whether the amount of $18,000 awarded by the trial judge to compensate the appellant for an injury he suffered in a motor vehicle accident was low to the extent that this court would interfere and increase the amount.

The medical evidence bearing upon this question chiefly relied on by the trial judge appeared in medical reports of Dr Ashwell and Dr Power. A reading of those reports, in the light of the general circumstances of the case as appear in the appeal papers, leads me to the view, applying the requirements this court is obliged to comply with pursuant to the High Court decision in Planet Fisheries v La Rosa, that according to current general ideas of fairness and moderation, and applying my own judgment, in what I hope to be a sound exercise of a sense of proportion, to what is in my case a product of general experience, the figure arrived at by the trial judge fell short of what was fair and reasonable by an amount sufficient to attract the appellate intervention of this court.

The figure proposed by counsel for the appellant of $25,000 to be substituted for the trial judge's figure of $18,000 is, to my mind both moderate and reasonable. I would uphold the appeal, set aside the award made by the trial judge and in place thereof propose that judgment be entered in the sum of $27,445 as at the date judgment was given in the District Court, which I think was 18 May 1983.

One other matter I wish to mention is that a further aspect of the moderate behaviour of both sides in this case was that no attempt was made by the respondent to raise a case of contributory negligence. I do not wish in any way to criticise the decision of the respondent's legal advisors in taking that course. On the other hand, I would not wish this case to be thought to be any encouragement for people making U-turns in main streets not to look behind them before they carry out that particular manoeuvre. In most cases such conduct, in connection with an accident, would be very likely to attract a decision by a court that the person who did it was guilty either of negligence, or contributory negligence.