PAYET v GLEESON [1993] NSWCA 207

PAYET v GLEESON

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 5 November 1993, 5 November 1993

[1993] NSWCA 207

DAMAGES — personal injury — two motor vehicle accidents consolidated — long delay in prosecuting proceedings — whiplash injuries to neck- judgment $156,000 — plaintiff's evidence held unreliable- very small amounts as cushion for economic loss and future general damages — alleged inconsistencies in awards for general damages — alleged inconsistencies in awards for general damages and for economic loss — held: (by maj): No inconsistency — small economic loss sustained by factual findings — appeal dismissed.

Handley JA This is an appeal by the plaintiff from an assessment of damages byMaster Malpass. The plaintiff's claims arise out of two motor vehicle accidents which occurred on 26 February 1973 and 6 June 1982. The plaintiff commenced proceedings in the District Court based upon the 1973 accident within three months of the date of the accident, but failed to prosecute those proceedings to a hearing for many years.

Following the 1982 accident proceedings were commenced in the Supreme Court and, in due course, steps were taken to remove the District Court proceedings to the Supreme Court so that both actions could be heard together.

However, the learned Master was, as a result, confronted with the task of assessing evidence and damages on a hearing which commenced in October 1989 arising out of one accident which occurred sixteen and a half years earlier and another accident seven and a half years earlier.

In each case the plaintiff claimed to have suffered whiplash type injuries particularly to his neck. The Master awarded $30,000 general damages for the first accident and $45,000 for the second. The judgment having been given prior to the decision in M.B.P.(SA) Pty Ltd v Gogic (1991) 171 CLR 657 the Master allowed interest on the pre-trial components of these awards. For the first accident he apportioned $22,500 for past loss and $7,500 for the future. For the second accident he apportioned $22,500 for the past and $22,500 for the future.