TVRDAK v MUCHITSCH [1992] NSWCA 255

TVRDAK v MUCHITSCH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 16 SEPTEMBER 1992, 24 September 1992

[1992] NSWCA 255

APPEAL — NEW TRIAL — QUANTUM OF DAMAGES — INADEQUACY APPEAL and NEW TRIAL — quantum of damages — inadequacy. Plaintiff appealed from assessment of damages by a judge sitting alone — assessment based on acceptance of medical report — judge mistaken as to effect of report — no evidence directly and explicitly supported judge's assessment. Held: (1) The assessment being based on a mistaken view of the evidence must be set aside; (2) In the circumstances the Court could not reassess on the written materials and there must be a new trial limited to damages.

Priestley JA I agree with Handley JA. Meagher JA I agree with Handley JA.

Handley JA This is an appeal by the plaintiff from a judgment of his Honour Mitchelmore DCJ in proceedings arising out of a motor vehicle accident which occurred on 11 August 1983. The Judge found for the plaintiff on Liability and assessed his damages at $40,000. The plaintiff has sought from this Court a new trial of the proceedings limited to the issue of damages.

As a result of the accident the plaintiff suffered injuries to his neck and back. On the following day he consulted Dr Jakovac and her first report dated 26 October 1983 was admitted in evidence. The plaintiff had six days off work immediately after the accident but then lost no further time from work until he was involved in a further motor vehicle accident on 19 September 1985. Although he lost no further time from work during this period he gave evidence that his neck and back symptoms continued. At the date of trial in August 1990 the plaintiff's complaints, according to the findings of the Judge, were that he had trouble and pain in his back. If he sat for more than forty five minutes his back got worse. Working overtime exacerbated the pain. Some days the pain in his back was better, other days it was not. He was taking a variety of drugs for his neck and back.