NAJJAR vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA 12 August 1992, 12 August 1992 [1992] NSWCA 170 DAMAGES — quantum — no question of principle. Clarke JA I will ask Justice Samuels to give the first judgment. SAMUELS AJA The appellant, the plaintiff below, was injured in a motor vehicle accident which occurred on 22 April 1985 when he was aged thirty seven. He made a claim for damages which was heard by Acting Judge Garling on 3 July 1990. Liability was admitted. The learned judge assessed the damages at a total sum of $18,524.82 made up of damages for pain and suffering, loss of amenities and the like in the amount of $15,000 with the balance allocated to medical, hospital and other out of pocket expenses. The appeal comes from that order, it being contended that the assessment was inadequate. The appellant does not challenge any findings of fact made by the trial judge, but disputes the value which he placed upon them. The injuries which the appellant suffered are compendiously stated in the judgment, as being injuries to the right neck, left shoulder, left knee and ribs, the appellant having hit his head on the car window and his left knee on the radio console. Subsequently he complained of pain in the right shoulder, tenderness in his neck and legs, and headaches. By September 1985 the learned judge found that all injuries and their consequences, save for the headaches and some problem with the left knee, had resolved; and the headaches had substantially disappeared by December of 1989. In 1986, because of complaints of disability in the left knee, an arthroscopy was performed which revealed a tear in the left medial meniscus which was repaired. For this purpose it seems that two admissions to hospital were involved, one in May 1986 and one in November of the same year. The plaintiff had not worked in any gainful employment since September 1977. The claim made in the statement of claim for future loss of earnings was understandably rejected. The learned judge did not think that the plaintiff had at any stage attempted to obtain work or had been serious about getting employment, and had, in any case, no incapacity which disabled him from doing whatever it was he was otherwise capable of working at. The remaining question, therefore, was the assessment of damages for pain and suffering and so forth, and the learned judge's findings are as follows: "That being so in assessing general damages I make allowance for the injuries to the plaintiff's right shoulder, neck and head, I make allowance for his ongoing headaches which are substantially controlled by medication, and I make allowance for the problems which he had with his knee up to the time of operation and the continuing minor degree of discomfort in the left knee. I take 2 UNREPORTED JUDGMENTS into account the fact that there is the possibility of the onset of osteoarthritis at some time in the future, and that in respect of all of those injuries the plaintiff has sustained pain and suffering and will continue to do so into the future. On the whole I do not think that the plaintiffs injuries, with the exception of the knee, were significant and I think that the plaintiffs injury to his knee since the operation has been substantially improved and constitutes a minor discomfort." In my view those conclusions are entirely justified by the evidence, and the value which the learned judge placed upon them cannot, it seems to me, be regarded as wholly disproportionate to the injuries and their sequelae. That being the case, the appellant has failed to satisfy the test which is required for success in a proceeding of this kind and the appeal must be dismissed with costs. Clarke JA I agree. Handley JA I also agree. SAMUELS AJA: The order of the Court will be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant! M CUMMINGS, Instructed by: SALMON CONNOLLY and Co Counsel for the Respondent: C BARRY/B MacRAE, Instructed by: GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES