ELLISON v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 64

ELLISON vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and Cripps JJA 20 August 1992, 10 September 1992 [1992] NSWCA 64

DAMAGES — motor vehicle accident — injury to back, shoulder and neck of roof and guttering plumber — trial judge limits damages to 12 months after accident — held: Unanimous medical evidence does not support finding judgment reassessed and increased — no issue of principle. DAMAGES — motor vehicle accident — injuries to back, neck and shoulder of roof and guttering plumber — plaintiff does not return to work — trial judge (McLachlan DCJ) awards $36,200 upon the basis of (a) a conclusion that disabilities after about twelve months following the accident were not the result of the accident; and (b) "arbitrary" reduction of out of pocket expenses — held: (Cripps JA; Kirby P and Handley JA concurring): (1) The trial judge's assessment was not supported by the evidence of either the orthopaedic or psychiatric specialists whose reports were tendered; (2) The judgment should be set aside and, upon a reassessment, judgment in the sum of $86,806 substituted, including full out of pockets.

Kirby P I agree with Cripps JA. Handley JA I agree with Cripps JA.

Cripps JA This is an appeal against the decision of McLachlan DCJ published on9 October 1991 awarding the sum of $36,200 to the plaintiff as damages for injuries received in a motor car accident on 10 March 1986.

The day following the collision the plaintiff went to the out patients' department of the local hospital. He returned on 18th and 21st March. He complained of pain in the neck, back and shoulders. He was referred to an orthopaedic surgeon, Dr Caspary, who treated him over the succeeding three years. He manipulated his cervical and lumbar spine under anaesthetic in April 1986. He manipulated his right shoulder in May 1987 and his left shoulder in October 1989. In April 1987 Dr Caspary was of the opinion that although he thought the plaintiffs symptoms would improve, he did not think they would resolve completely.