FOLINO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1993] NSWCA 98

FOLINO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and Cripps JA 24 March 1993 [1993] NSWCA 98

FACTS: Quantum appeal for damages suffered by appellant as a result of a motor vehicle accident. Judge below finds factual dispute for the respondent, reasoning that the evidence supported the conclusion that the appellant was a malingerer.

HELD: (per curiam)

(1) Reasons of Judge below were the result of significant errors. (2) Where significant errors are made, appellate court must order new trial.

Meagher JA. This is an appeal by a disappointed plaintiff from a judgment given by his Honour Judge Downs on 2 July 1991. It was a quantum appeal for damages reportedly suffered by Mr Folino, the plaintiff, after a motor vehicle accident. His Honour awarded Mr Folino the comparatively modest sum of $12,361.00 made up of loss of wages and interest thereon in the sum of three thousand seven hundred dollars agreed out of pocket expenses, one thousand one hundred and sixty one dollars and general damages of seven thousand five hundred dollars. Although his Honour's judgment is not of excessive length it does cover a fairly considerable factual dispute. Mr Graham has sought to identify numerous factual errors in his Honour's reasons. In my opinion, Mr Graham's efforts in this regard have been successful. I shall not attempt to review the whole ambit of the dispute because there is no point in doing so but it seems to me on his Honour'sjudgment that his Honour is indicating, although not expressly stating, that in his view the plaintiff was a malingerer. In the course of so doing on one occasion his Honour said this:

Dr Gallo is general practitioner was called and said that a complaint of pain from the lumbar area radiating to the cervical spine would indicate malingering.