GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v DINKHA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, HANDLEY and SHELLER JJA 13 March 1992, 13 March 1992 [1992] NSWCA 82 DAMAGES — QUANTUM — NO QUESTION OF PRINCIPLE DAMAGES — quantum — no question of principle. ORDERS 1. Appeal allowed. 2. Set aside the verdict and judgment in the sum of $17, 000 and in lieu thereof substitute an award for $8,823.40, such judgment is to take effect from 20 April 1990. Gleeson CJ I will ask Mr Justice Handley to give the first judgment. Handley JA This is an appeal by the defendant, the Government Insurance Office,from a judgment given by his Honour Judge Grogan in the District Court at Parramatta on 20 April 1990. His Honour found a verdict for the plaintiff, assessed damages at $17,000 and entered judgment for that amount. In this Court the only grounds of appeal have related to the issue of damages. The plaintiff was injured as a result of a motor vehicle accident on 21 August 1985 when the car that she was driving was struck from behind by a vehicle driven by a person insured by the appellant. Although liability was in issue at the trial his Honour noted that there was in truth little dispute on that issue and liability has not been contested in this Court. There was however a major issue at the trial on the question of damages. We have been referred to the findings by the trial judge which were extremely adverse to the plaintiff, the plaintiff's husband and to another witness, a Mr Youkhana who was called in the plaintiffs case. In the end, despite rejecting a great deal of the plaintiff's evidence as to her continuing symptoms and disabilities his Honour found that on the balance of probabilities she had suffered a mild cervical soft tissue injury as a result of the accident from which she recovered within a matter of months. On this basis, his Honour supported his assessment of damages. The first ground of appeal argued on behalf of the appellant challenged the finding by the trial judge that the plaintiff had sustained an injury to her neck in the terms I have referred to. Mr Quinlivan submitted that having regard to the other findings by the trial judge, involving the rejection of a great deal of the plaintiff's evidence and that of her husband, it was not open to the trial judge to make that finding. The submission to this Court was not that the finding was not supported by any evidence - indeed it was expressly conceded that the finding was supported by evidence. The submission that was pressed was that consistently with his other findings on the credibility of the plaintiff and her husband, the trial judge failed to make proper use of his position when he made this modest finding in favour of the plaintiff. 2 UNREPORTED JUDGMENTS In my opinion this Court is not in a position to disturb that finding. As conceded it is one that was supported by evidence and evidence other than that of the plaintiff herself. The finding was not, in my opinion, glaringly improbable. The trial judge expressly noted that the collision between the two vehicles was of such severity that both had to be towed away from the scene of the accident. The plaintiff attended at Fairfield Hospital as an outPatient on the day of the accident and the hospital notes are in evidence before us. These indicate that physical examination of the plaintiff undertaken by hospital medical staff that day, "revealed mild pain on neck movement". There was no other objective evidence of any injury to her neck. She was given a cervical collar and discharged. The finding of the trial judge was also supported by the evidence of the plaintiff. While it is true that a great deal of that evidence was expressly rejected by the trial judge, it was certainly open to his Honour, who had seen and heard the plaintiff, to find that beneath the exaggeration and perhaps worse there lay some substratum of truth which he then reflected in the finding I have referred to. It is well accepted that a tribunal of fact is entitled to reject parts of the evidence of a witness and to accept other parts and to make proper allowance for any exaggeration which may be reflected in that witness's evidence. In my opinion, consistently with the principles which determine whether an appellate court is entitled to disturb the findings of fact made by a trial judge which may have been influenced by the judge's assessment of credibility, this Court cannot disturb the finding in question. The remaining grounds of appeal were directed to the quantum of his Honour's award. His Honour said that having regard to his reasons and findings he considered that: "A reasonable and proper, indeed perhaps over generous amount, to compensate the plaintiff for her injuries and disabilities, pain, suffering, inconvenience and loss of amenities is $15,000." With all respect to the trial judge, it seems to me that $15,000 is indeed as he himself partly recognised a generous and indeed an over-generous award for a mild cervical soft tissue injury from which the plaintiff recovered within a matter of months. I take it from the way in which his Honour expressed that finding that the plaintiff had completely recovered within a matter of months and that of course is consistent with the fact that he rejected all her complaints of continuing disabilities. At the time - that is between August 1985 - when the plaintiff suffered the accident, and the period covered by his Honour's finding - a matter of months after which her recovery was complete, she was looking after her two children then aged four and two and acting also as housewife for her husband in the family home. In the light of the fact that she was evidently able to discharge these domestic duties, it seems to me that the award is excessive and that it should be set aside. I would substitute an award of $7, 500 general damages. The remaining ground of appeal challenges his Honour's award of $1, 958.50 for "agreed out-of-pocket expenses". While the mathematics of that figure was the subject of an express agreement at the trial, the defendant made it quite clear that it was not accepting liability for this amount and that there was an issue as to whether and to what extent the plaintiff had established that those expenses were reasonably incurred as a result of her injuries. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v DINKHA (Sheller JAB In view of the finding that the plaintiff had recovered from her mild injuries within a matter of months, it seems to me that his Honour's allowance of the full amount of the plaintiffs out-of-pockets at the figure claimed cannot be justified. Taking 31 January 1986 as a reasonable approximation of the outer limits of the period of a matter of months before the plaintiff's recovery was complete, I would propose that the allowance for out-of-pocket expenses be apportioned as at that date. On this basis the plaintiff should have been allowed $1,323.40 and I would propose that that figure be substituted for the sum allowed by the trial judge. I would propose therefore that the following orders be made: 1. Appeal allowed. 2. Set aside the verdict and judgment in the sum of $17,000 and in lieu thereof substitute an award for $8,823.40, such judgment is to take effect from 20 April 1990. The defendant should pay the plaintiff's costs of the trial. The respondent should pay the appellant's costs of the appeal but to have a certificate in respect thereof under the Suitors Fund Act. Gleeson CJ: I agree. Sheller JA I agree. Gleeson CJ: The orders of the Court will be as Mr Justice Handley proposed. 1. Appeal allowed. 2. Set aside the verdict and judgment in the sum of $17,000 and in lieu thereof substitute an award for $8,823.40, such judgment is to take effect from 20 April 1990. Counsel for the appellant: A Quinlivan Solicitors for the appellant: Government Insurance Office of New South Wales Counsel for the respondent: JO Anderson Solicitors for the respondent: Lacey and Co