PALADIN v NGUYEN [1992] NSWCA 177

PALADIN v NGUYEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 30 April 1992

[1992] NSWCA 177

DAMAGES — finding that plaintiff unsatisfactory witness — importance of subjective symptoms of back pain — low verdict undisturbed. ANTI DISCRIMINATION — migrant workers — judge's remarks on generosity of Australian social security to — need to avoid stereotypes. PRACTICE and PROCEDURE — dangers of trials on medical reports alone referred to.

DAMAGES — quantum appeal — plaintiff claims inadequate damages — plaintiff a forty year old Yugoslav carpenter preinjury work involves formwork carpentry and mining evidence of disc injury on CT scan — trial judge finds plaintiff poorly motivated and unimpressive as witness finds him permanently unfit for heavy work including preinjury work as formworker — disallows most of medical expenses — awards judgment of $66,100 — judgment includes sum Of $10,000 for future loss of economic capacity — held: (Clarke and Handley JJA; Kirby P dissenting): No error of fact-finding was shown on the part of the trial judge — no other error authorised the Court to disturb his conclusion which depended on his findings as to the credibility of the plaintiff and the genuineness of his complaints of pain and incapacity. Abalos v Australian Postal Commission (1988) 171 CLR 167 applied. ANTI DISCRIMINATION — migrants — injured migrant worker failure to secure employment six years after injury — trial judge suggests "Australians generous" with social security payments — whether attitude of prejudice disclosed which may have affected his judgment — observations by Kirby P (diss) on the obligation of judges to disregard stereotypes about injuries migrant workers and to assess damages solely on the evidence presented at the trial. PRACTICE — trial on medical reports — contradictory medical opinions — absence of oral evidence — dangers of reliance on medical reports alone — standards required by legal representatives — criticisms by trial judge and in Court of Appeal referred to Law Society. ORDERS Appeal dismissed with costs.