GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BULLOUGH [1993] NSWCA 113

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BULLOUGH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KiRBY P, MEAGHER JA and HANDLEY JA 26 March 1993

[1993] NSWCA 113

FACTS: Respondent/plaintiff injured moderately seriously in an accident, awarded damages of $62,959.43. Appellant/defendant appeals general damages and assessment of overtime awarded.

HELD: (per curiam)

(1) Assessment of general damages remains undisturbed. (2) Reliance on accountant's report and acceptance of oral evidence of plaintiff sufficient reasons for judgment of judge below.

Meagher JA. In this matter the plaintiff was injured moderately seriously in an accident which took place on the 2nd June 1987 and was heard before his Honour Judge Nield on the 19th of July 1991. His Honour awarded the plaintiff a verdict of $62,959.43.

The defendant appeals on two grounds. One ground concerns the amount of general damages which the appellant submits is too high. The figure actually awarded by his Honour was a figure of $35,000.00. The appellant's earnest submission was that the correct figure should be no more than $30,000.00. How it could be expected that that submission should be acceded to is a little difficult to follow. In my view, the submission fails.

The second submission is rather more difficult. It concerns the element of overtime which is reflected inhis Honour's judgment both for the period between accident and trial and for the period after trial.

The plaintiff's oral evidence, which is somewhat skimpy certainly but which his Honour accepted, amounted to this, that in the period 1982 to 1985 the plaintiff was not minded to do much overtime, not because he was unable to do so, but because he did not feel like it. Thereafter he began to do some more overtime.

At the actual time of the accident he was in fact doing it. His intention at that time was to do all overtime reasonably available and to continue doing so until retirement. A document was admitted from the accountants which compared his position to that of two fellow employees in order to demonstrate what overtime they had earned in the periods between accident and trial and in order to enable the Court to make calculations as to what the position would be after trial.