GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GAUCI [1992] NSWCA 83

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GAUCI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, PRIESTLEY and SHELLER JJA

19 May 1992, 19 May 1992

[1992] NSWCA 83

DAMAGES — assessment — whiplash injury causing headaches and depression — video films show plaintiff working in garden — do not provide objection evidence to authorise setting aside judgment based on trial judge's acceptance of plaintiff.

DAMAGES — motor vehicle injury — liability admitted — cervical whiplash — complaints of pain, headaches and depression — trial judge (Lloyd-Jones DCJ) enters judgment for $102,000 — appeal by insurer — whether appealably excessive — whether incontrovertible evidence of exposed video film showing plaintiff working in garden inconsistent with conclusions upon which components of judgment based — held: (1) Although the appeal was by way of rehearing, the Court of Appeal was only entitled to set aside the judgment and components of it if it were shown that the trial judge had erred in his assessments.

Moran v McMahon (1985) 3 NSWLR 700, 715 (CA) applied; Abalos v Australian Postal Commission (1991) 171 CLR 167 applied; ORDERS 1. Appeal dismissed; and 2. The appellant to pay the respondent's costs.

Kirby P This is a defendant's damages appeal Lloyd-Jones DCJ which raises no issue of principle.

INJURY, JUDGMENT AND ASSESSMENT OF THE PLAINTIFF

The defendant insurer (the appellant) contends that the award of damages to the plaintiff/respondent was appealably excessive to such an extent as would authorise this Court to disturb the judgment entered by his Honour.

The principles to be applied are not in doubt. They were explained by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700 at 715 (CA). They have been elaborated in many like cases.

The respondent was injured in a motor vehicle accident which occurred on 6 November 1984 at Bass Hill, near Sydney. The vehicle in which he was proceeding was stationary at an intersection when it was struck from behind by a vehicle, for the negligent driving of which the appellant is, in law, responsible.