CUMMINS v BROCKWELL BROCKWELL v BROWN [1993] NSWCA 79

CUMMINS v BROCKWELL BROCKWELL v BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 15 October 1992, 16 April 1993 [1993] NSWCA 79

APPEALS — TWO MOTOR CAR ACCIDENT CASES WITH COMMON PLAINTIFF HEARD TOGETHER — LEAVE TO APPEAL

APPEALS — two motor car accident cases with common plaintiff heard together — question in one appeal whether damages excessive — in the other whether damages inadequate.

APPLICATION FOR LEAVE TO APPEAL — s101(2)(c) Supreme Court Act — leave sought to cross appeal in one case on question of costs. Plaintiff involved in two separate motor vehicle accidents — suffered minor symptoms until after a separate work related accident — in proceedings relating to first accident, defendant found negligent and damages awarded — in proceedings relating to second accident, other defendant also found negligent but judgment entered in favour of defendant and no order as to costs as plaintiff suffered no significant damage — appeals from the two proceedings heard together: (1) defendant in first matter asserts plaintiff's condition mostly caused by other incidents and not so bad as to justify so substantial an award; (2) regarding second matter, plaintiff asserts that damage was caused, judgment should be entered in her favour as all elements of negligence established and damages award be made; (3) defendant in second matter seeks leave to appeal against no order as to costs having been made. Held: as to (1) reasonably open on materials to come to findings and award (per curiam); although very difficult to accept (per Handley JA); (2) significance of argument nominal and does not justify upholding appeal; (3) costs order sensible on facts.

ORDERS

1. First appeal dismissed with costs.

2. Second appeal dismissed, no order as to costs. 3. Leave to appeal refused, no order as to costs.