GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MADERNA [1992] NSWCA 88

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MADERNA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 6 August 1992, 6 August 1992

[1992] NSWCA 88

DAMAGES — economic 1086 — loss of economic capacity — female in flower growing partnership with husband — trial judge (PR Garling A-DCJ) treats as case of total destruction of economic capacity finding inconsistent with plaintiff's opinion, activity and medical evidence — held: (1) Damages for economic loss recalculated to increase deduction for contingencies from 15% to 20% for prospects of utilising residual economic capacity; (2) The Court of Appeal should not "tinker" with judgments but where error was shown, which it could correct without any disadvantage vis a vis the trial judge, it should proceed to do so holding back only in cases of de minimis, mere marginal adjustment of the judgment of the primary judge or where, though error has been shown in the components, the total judgment is within the range.

NEGLIGENCE — conflict of evidence — resolution open on evidence judge prefers plaintiff's witnesses' evidence — held: Judgment stands. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied. APPEAL — conflict of facts at trial — methods of resolution limits on Court of Appeal's function of appellate review.

Kirby P Before the Court is an appeal from a judgment entered by Associate Judge PR Garling in the District Court. The judgment was given on 28 February 1992, having stood reserved for some fourteen months after the trial.

Damages claim as consequence of an unidentified motor vehicle. The judgment arose out of an action for damages brought by Mrs Dominga Maderna (the respondent), following a motor vehicle accident in which she was involved on 15 December 1985. The respondent sued the Government Insurance Office of New South Wales. It is the body liable, in law, for the negligence of the driver of an unidentified motor vehicle which caused her injuries. Both liability and damages were contested at the trial. The judgment was entered in the sum of $164,357.98. That sum was not reduced for any contributory negligence on the part of the respondent. It is against that judgment that the Government Insurance Office of New South Wales (the appellant), appeals to this Court.