JOHN VAN HOUTEN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1993] NSWCA 278

JOHN VAN HOUTEN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and Cripps JA 21 September 1993

[1993] NSWCA 278

FACTS: Not disputed.

HELD: (per curiam)

(1) The impropriety of the reduction of damages for contributory negligence was conceded.

(2) Whether the out-of-pockets was too slight is peculiarly a matter for the Master and was not based on credibility.

Meagher JA. These are two appeals by an appellant plaintiff. Action No 11251/88 has now been dismissed. In action No 19053/85, the plaintiff alleged negligence in the defendant arising out of a motor vehicle accident said to have taken place in Sutherland Street Paddington on 18 July 1985. Despite the plaintiff's slight qualifications for credibility the Master's charity was such as to find the defendant was negligent.

The damages the Master assessed were $10,000.00 for general damages and out-of-pockets of $1,969.00. The total verdict, therefore, was $11,969.00. However, this was reduced for contributory negligence by seventy five per cent on account of the plaintiff's failure to wear a seatbelt, leaving a judgment verdict in the sum of $2,992.00.

There are two grounds of appeal. One, that the reduction for contributory negligence was improperly made. The impropriety of this debt has been conceded. The other ground of appeal was that the out-of-pockets was too slight. In my view, this was peculiarly a matter for the Master, particularly as it was based on the question of credibility, and that ground has not been made out.

In my view the following orders should be made. Appeal allowed. Verdict in judgment in the sum of $2,992.00 to be set aside. In lieu thereof order that verdict in judgment be entered for the plaintiff/appellant in the sum of $11,969.00 together with the sum of $4,923.00 for interest and it should be noted that the sum of $2,992.00 has already been paid.