DARR v PAPALKAR [1992] NSWCA 53

DARR v PAPALKAR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 31 March 1992, 10 April 1992 [1992] NSWCA 53

APPEAL — damages — motor vehicle accident — plaintiff (a medical practitioner) suffers pain and decreased work capacity — defendant appellant argues (1) damages award for past and future economic loss excessive (2) 7.5% interest rate on past general damages inappropriate — held: (1) evidence relied on by trial judge sufficient to justify figure assessed (2) interest award must be limited to 2% because of MBP vy Gogic (1991) 171 CLR 657 and subsequent decisions in Court of Appeal.

Mahoney JA I agree with the judgment of Priestley JA.

Priestley JA This is an appeal by the defendant in District Court proceedings against the amount of damages awarded in those proceedings by his Honour Judge Lloyd-Jones on 6 December 1990.

The plaintiff's claim against the defendant arose from an accident on 1 October 1982 in Dungog. The plaintiff was a passenger in a car driven by his wife which collided head-on with a motor cycle ridden by the defendant. In the statement of claim filed by the plaintiff in December 1986 he alleged the defendant was riding at an excessive speed on his incorrect side of the road. The defendant admitted liability. The question for the trial judge was therefore limited to deciding the amount of the damages proved by the plaintiff.

At the time of the accident the plaintiff, who was born on 15 June 1943, was a duly qualified medical practitioner practising at Dungog. Evidence of what happened to him in the accident was given in some detail by the plaintiff himself and was also described in clinical terms in medical reports by Dr Isaacs who first saw the plaintiff about three weeks after the accident. This evidence showed that the plaintiff had suffered a fractured shaft of his left third metacarpal bone, a laceration over the posterior aspect of the right forearm, a contusion over the anterior aspect of the chest wall over both the right and left lower aspects and the xiphisternal region. Dr Isaacs' prognosis when he first saw the plaintiff was optimistic. At that time the plaintiffs left hand was immobilised in a boxing glove bandage, but Dr Isaacs was of the view that it should "be right" in two to three weeks. He also felt that the other injuries would soon subside. However, the evidence given by the plaintiff was to the effect that the injuries had much longer term consequences than was originally hoped. The trial judge described the plaintiff's evidence as quite straightforward and said the plaintiff was an honest witness who was not exaggerating.