GIO OF NEW SOUTH WALES v ZERAFA [1992] NSWCA 76

GIO OF NEW SOUTH WALES v ZERAFA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 1 April 1992, 1 April 1992

[1992] NSWCA 76

APPEAL — damages — quantum — appellant argues (1) mistake as to award of interest on general damages, (2) $40,000 general damages for injuries to neck, shoulder and knees sustained in motor accident excessive — Held: (1) mistake to award interest, (2) general damages award properly considered and within reasonable range.

ORDERS

1. Appeal upheld.

2. Judgment set aside; in place of it judgment for $46,911.33 taking effect at 5 February 1986.

3. Appellant to bear costs of appeal.

Priestley JA This is an appeal by the Government Insurance Office, the defendant in District Court proceedings, against the amount of damages awarded in those proceedings by his Honour Judge Johnston on 27 December 1990.

The plaintiff's claim arose from a car accident on 5 February 1986 for which the defendant admitted liability. Judgment for the plaintiff was entered in the sum of $49,661.33. This was made up of the following: past economic loss $3,750; interest on past economic loss $2,750; out-of-pocket expenses $3,161.33; general damages $40,000.

In the appeal the defendant has challenged the figures for interest and general damages.

As to interest, it is conceded by counsel for the plaintiff that his Honour was in error in awarding interest on the general damages component and that the error should be corrected. That ground of appeal will therefore be upheld.

As to general damages, the defendant has submitted that $40,000 is significantly beyond the range appropriate for the plaintiff's injuries which the defendant described as "minimal".

The submission was based upon a rapid but extensive review of the evidence. This review consisted of a division of the plaintiff's injuries into three categories - an injury the plaintiff had suffered to his shoulder, an injury to his neck, and an injury to one of his knees. I do not think it necessary, in disposing of the appeal, to go through the evidence in the same detail as defendant's counsel needed to do because the trial judge described his own synthesis of the evidence in a passage in his reasons which I do not think that I could improve upon. In this passage he sets out simply and consecutively the main features, as he saw them, after he made his various findings of fact. Amongst his findings was one, that the plaintiff was an impressive witness who had a tendency to play down his case, rather than to embellish it.