SHAM SHON ISAAC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES ZARDY ISAAC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 155

SHAM SHON ISAAC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES; ZARDY ISAAC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER and HANDLEY JJA 30 August 1991, 30 August 1991 [1991] NSWCA 155

DAMAGES — damage denied because plaintiff had sustained no injury — judge's findings wrong and new trials ordered.

Samuels JA These are three appeals from judgments of Judge Conomos in relationto three actions for damages arising out of two motor vehicle accidents.

I confess that I have found these difficult cases to determine and I acknowledge the considerable assistance I think we have had from Mr Petty of counsel for the appellant and Mr Bell of counsel for the respondent.

The facts barely stated are these. The appellants are husband and wife. The male appellant was involved in two motor vehicle accidents. The first was on 21 September 1986 and the second on 23 October 1986. He brought proceedings in respect of both. The female appellant, his wife, was a passenger on the second occasion on account of which she sued.

Each appellant contended that an injury to the cervical spine or a soft tissue injury in that area, commonly known as a whiplash, had been the consequence of each accident. The actions came before Judge Conomos on 2 April 1990 and his Honour dismissed each claim on the basis that neither appellant had sustained any injury in the incidents to which I have referred.

The learned judge in his judgment made some severe criticisms of the credibility of each appellant. He said first of all:

"IT do not believe the male plaintiff, I found him to be long winded and unconvincing.... I do not believe this plaintiff, he is an opportunist. He has made up his mind to take advantage of the Court system."

His Honour went on to suggest that the plaintiff, who was at the time in receipt of unemployment benefits, knew that "if all else fails, " that is to say, if his litigation which, ex hypothesi, his Honour at that point was stigmatising as either without merit or frankly false, produced no dividend, the plaintiff could fall back on unemployment or sickness benefits.