BROWN v FLEMMING [1992] NSWCA 31

BROWN v FLEMMING SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 2 April 1992, 2 April 1992

[1992] NSWCA 31

Damages — appeal from Master's assessment — whether damages inadequate — no issue of principle — appeal dismissed.

Sheller JA This is an appeal from a judgment of Master McLaughlin given on 2 August 1991 in proceedings in which the appellant, Glenn Hilton Brown, sued the defendant for injuries and consequent disabilities and loss which he claimed to have sustained as a result of a motor vehicle accident which occurred on 28 December 1983. Liability was admitted and the task which the Master, therefore, undertook was that of assessing damages.

The ultimate award he made was for a total amount of $24,436.94 of which one component was general damages for pain and suffering of $10,000 and interest on that amount of $2,812. Another component was for past and future economic loss of $10,000 and an ultimate amount of out-of-pocket expenses of $1,624.94.

The appeal, as it was ultimately presented to us, raised three matters of complaint about the Master's award. Firstly, it was said that he had been in error in finding that a low back disability, of which the appellant complained, was not causally related to the motor vehicle accident. Second, it was said that, even if the Master were right in that respect the general damages of $10,000 for the cervical injury which the Master found the appellant had suffered was so low that this Court ought to intervene to correct it. Thirdly, it was said that the Master had erroneously neglected to award interest for past economic loss.

The appellant, who was born on 15 January 1966, was involved in accidents on two successive days. The first, 28 December 1983 and the second on 29 December 1983. In the first he was a passenger in a motor vehicle which left the roadway, became airborne, landed on its roof, rolled and finally came to rest on its roof. In respect of that accident the appellant claimed that he had, as a result, suffered an injury to the cervical spine and the Master accepted that that was so. The following day the appellant, while riding a motor cycle in the back yard of some friends, fell off. There was some evidence from which it might be inferred that dizziness resulting from the motor vehicle accident had caused the fall. Subsequently the appellant developed symptoms in his thoraco lumbar spine.