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. Clarke JA. I agree. The appellant complained that in the accident he had sustained an aggravation to an underlying degenerative condition in his cervical spine. The master, as he then made clear, did not believe the appellant. He found him a man of dubious credibility and he was not satisfied that the appellant had, in fact, suffered that aggravation. It is clear that the medical evidence in this respect depended entirely, or almost entirely, upon the history given by the appellant and, once that was found to be somewhat dubious, it became difficult for the Master to accept that the appellant had made out his case. 2 UNREPORTED JUDGMENTS Furthermore, there is to be found in some of the medical evidence support for the viewpoint that quite independently of this accident, the appellant was likely to have been suffering from the symptoms of which he complained, I refer, in particular, to a report of Dr Donaldson of 7 July 1988 in which the doctor said: His symptoms are quite consistent with the ongoing degeneration within the cervical spine But I also refer to Dr B J Ireland's report of 29 April 1988 which concludes with these words: Overall it appears that he is a man committed to disability and he has a history of litigation over previous problems and has not effectively worked for at least eight years, so I believe motivation is probably minimal It seems to me that the master was justified in failing to be satisfied that the appellant had suffered the aggravation of which he complained and, in those circumstances, the award made by the Master cannot be interfered with. I agree with the orders proposed. Cripps JA. For the reasons given by Meagher JA and Clarke JA I agree with the orders proposed. Clarke JA. The orders will be so far as Meagher JA has read out. So far as matter No 11251/88 the appellant is to pay the respondent's costs of the appeal. The costs order that the court makes in matter No 19053/85 is that the respondent pay the appellant's costs of the appeal up to and including 5 September 1993. Thereafter costs are to be paid by each party. I should also order that the costs order originally made by Master McLaughlin will stand in respect of the trial despite the fact the appeal has been allowed. (1) Appeal allowed. (2) Verdict in judgment in the sum of $2,992.00 to be set aside. In lieu thereof, judgment entered for the plaintiff/appellant in the sum of $11,969.00 together with the sum of $4,923.00 for interest. Note the sum $2,992.00 has been paid. (3) In matter 11251/88, the appellant is to pay the respondents costs of the appeal. (4) In matter 19053/85 the respondent pay the appellants costs of the appeal up to and including 5 September 1993. Thereafter costs are to be paid by each party. (5) Costs order originally made by Master McLaughlin in respect of the trial will stand. Counsel for the appellant: R J COLQUHOUN Solicitors for the appellant: GREGORY HARRISON HEALEY Counsel for the respondent: K REWELL Solicitors for the respondent: G M MEADOWS