ESKANDAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 67

ESKANDAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY JJA and SAMUELS AJA 13 August 1992, 13 August 1992

[1992] NSWCA 67

DAMAGES — CREDIBILITY — BROWNE v DUNN — APPREHENSION OF BIAS

Clarke JA This is an appeal from a decision of his Honour Judge McLachlan in which his Honour entered judgment for the appellant in the sum of $30,436.05. The appellant had claimed damages in respect of injuries which he allegedly received in a motor vehicle accident on either Saturday 8 March 1986 or early on Sunday morning. There was a lively issue as to liability but his Honour decided that issue in the appellant's favour. The only relevant observation that should be made about the accident was that, in his Honour's view, it was a minor one.

The verdict was made up of the following components: economic loss to mid July 1986 $6,481.84, interest on past economic loss $2,332.80, future economic loss nil, out-of-pocket expenses $1,621.45 and general damages $20,000. The out-of-pocket expenses which were allowed were identified and represented the expenses during a period of eighteen weeks during which his Honour was prepared to accept that the appellant was suffering from some disability.

Following the accident the appellant attended the emergency department at Royal Prince Alfred Hospital at about 12.30am on 9 March. He complained of pain along the seat belt area. There was no pain on firm compression of his chest and no pain on the springing of his pelvis. Abdomen was soft and non-tender. X-rays were taken of the abdomen and chest and no abnormality was detected. The diagnosis was of soft tissue trauma due to his seat belt and he was discharged home.

The next event which occurred was a somewhat surprising one in that on the Monday following the accident an ordinary statement of claim was filed on his instructions in which it was said, inter alia, that as a result of the accident the appellant suffered injury, loss and damage and lost salaries and wages he otherwise could and would have earned and was rendered liable to pay expenses et cetera.