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. It is important I feel to realise that his Honour did not accede wholly to these documents. His Honour did agree that the plaintiff's evidence had to be accepted. He did say that the figures in Exhibit E which were the accountant's figures ought to be accepted, but to account for vicissitudes and to account for the fact that the plaintiff might be impeded from doing overtime through non-accident related causes his Honour discounted the figures by a third. Otherwise he accepted that the plaintiff was in fact comparable to his two co-employees. 2 UNREPORTED JUDGMENTS In an interesting argument, Mr Charteris has submitted to us that it wasn't strictly proved that theplaintiff was comparable to the two company employees in question. That argument is technically correct, but, on the other hand, if the defendant wished to take that point it should have objected to the tender of Exhibit E. Once that document had been tendered without objection the plaintiff and his Honour were entitled to act on the assumption in my view that the persons named in it as comparable to the plaintiff were in fact comparable. On this basis, his Honour accepted the plaintiff's oral evidence and once his Honour treated the accountant's document at its face value the figures awarded by his Honour are explicable however unsubstantiated they might appear to be in other circumstances. For those reasons, I would dismiss the appeal with costs. Kirby P. I agree. Handley JA. I also agree. I wish to add that Exhibit E was originally tendered by counsel for the plaintiff on the first day of the hearing on the 27th March 1991 and rejected by his Honour because it had not been served as an expert report within the time required by the rules. On that occasion counsel then appearing for the plaintiff informed the court that figures relating to comparable employees had been served on the solicitors for the defendant the previous November. The question of the overtime claim based on Exhibit E was then thesubject of accounting investigation on behalf of the defendant as appears from the transcript of the 29th of April, the 3rd of May and the 10th of May. In the end counsel for the defendant did not tender any report from the accountant who had been retained on behalf of the defendant to investigate the overtime claim. In the result, Exhibit E was admitted into evidence on the 10th of May. It remained unanswered and the plaintiff was not recalled for further cross-examination despite the lengthy adjournments which the defendant had obtained to investigate that claim. There are some problems with Exhibit E and in particular, with the schedules attached to it which demonstrate that at various periods of time the plaintiff was able to work as much as twenty four hours overtime a week. The plaintiff was also away, in one year, for some twenty weeks of long service and annual leave and yet has been awarded damages for loss of overtime for this period. However, the Court cannot make cases for parties who are not able or willing to make them for themselves. In those circumstances, I have no hesitation in agreeing with the judgment of my Brother Meagher. Kirby P. The order of the Court is appeal dismissed with costs. (1) Appeal dismissed with costs. Counsel for the appellant: C Charteris Solicitors for the appellant: NSW Ministerial Insurance Corporation Counsel for the respondent: S Hill Solicitors for the respondent: Maguire and McInerney