CHARSLEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1993] NSWCA 57

CHARSLEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and CRIPPS JJA

22 March 1993, 22 March 1993

[1993] NSWCA 57

DAMAGES — quantum — no question of principle.

Handley J This is an appeal from a decision of Master Malpass in a motor vehicle case. The learned Master was hearing an assessment of the plaintiff's damages arising from an accident which took place on 4 November 1986 after the plaintiff, who was a tradesman tiler employed by his own company, had ceased work for the day.

In a long and generally careful judgment the learned Master gave reasons for rejecting the substance of the plaintiff's case in which he concluded the plaintiff had not persuaded him on the balance of probabilities that his back condition was causally related to the motor vehicle accident.

On this basis the plaintiff's case was a modest one only and attracted only a modest assessment of damages at $19,500.

In support of the appeal Mr Harris has isolated two matters which, in his submission, demonstrate errors on the part of the learned Master of such a kind as to warrant this Court ordering a new trial of the proceedings.

I should explain that the plaintiff had been at work in his occupation as a tradesman tiler on the day in question. At some stage he lifted a full bag of cement and the Master found he thereby injured his lower back. The plaintiff remained at work until the ordinary closing time and then arranged at short notice to attend at his normal chiropractor to have a manipulation of his lower back to relieve the pain and discomfort that he was then experiencing. The plaintiff did so and then either went home again, having previously gone home from work and changed, or continued on his way home.

He suffered the motor vehicle accident on the journey from the chiropractor's premises to his home. The impact was a severe one and the steering wheel was forced against the plaintiff's chest, breaking his breastbone. The plaintiff was taken by ambulance to the rooms of his general practitioner, Dr Sartori, where he was seen by the doctor who arranged for x-rays of his chest and back. Those x-rays confirmed the fracture of the breastbone and disclosed no evidence of recent trauma to the back.