McDONOUGH v GOVERNMENT INSURANCE OFFICE OF NSW [1993] NSWCA 176

McDONOUGH v GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and HANDLEY JA 3 January 1993

[1993] NSWCA 176

DAMAGES — NO QUESTION OF PRINCIPLE

Clarke JA. On Thursday 29 November 1990 Judge Shillington decided the case brought by the appellant in which she sued to recover damages in respect of injuries received by her on 21 September 1985 and their consequences.

His Honour found that the appellant was entitled to a verdict and assessed damages in the amount of $22,317.65. That sum was made up as to $20,000 for general damages and as to $2,317.65 as out-of-pocket expenses, which were not in contest.

The appellant has challenged that award asserting that it is inadequate and she has made particular complaints in relation to specific findings made by his Honour and, in one respect, the absence of a finding.

The plaintiff's case at the trial was that shortly after the collision she felt pain principally in her neck, lower back, left hip, right knee and right toe. She asserted that those problems, particularly in the neck and the lower back, continued to the date of trial and were still in evidence then. She claimed economic loss both inrespect of earnings lost prior to the trial and an impairment of earning capacity in the future.

His Honour pointed out that there were few objective signs and that the continuing problems which were alleged were of the soft tissue variety and his Honour observed that, in those circumstances, his assessment depended very much upon his view of her credibility and veracity. Having made that point his Honour expressed the opinion that the appellant had exaggerated her problems to a considerable extent when she reported to various doctors and later his Honour made it clear that he was unable to accept her as a reliable historian.