MILITAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1993] NSWCA 180

MILITAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and CRIPPS JJA

25 March 1993, 25 March 1993

[1993] NSWCA 180

DAMAGES — quantum — no question of principle.

Meagher JA I will ask Mr Justice Handley to give the first judgment.

Handley JA This is an appeal by a plaintiff from an assessment of damages by his Honour Judge McLachlan. The case arose out of a motor vehicle accident which occurred in August 1982 as the plaintiff was being driven by her husband and other relatives from Mascot to her home on the very day she arrived in this country. The proceedings were not commenced until 1986. His Honour awarded the plaintiff the sum of $22,500 by way of damages.

Mr McGovern who has appeared for the appellant has submitted that his Honour failed to make primary findings of fact and hat the judgment is such that the matter has to go back for a retrial. I regret that this result inevitably flows from a comparison between his Honour's reasons and the evidence in the proceedings. It is understandable with the pressure of twenty-five actions in the list that in this matter his Honour's reasons on the day he gave judgment should be less than satisfactory but that has been the result and in my view there must be a new trial on the issue of damages.

There is no evidence that the plaintiff consulted any medical practitioner for any purpose at all whether in relation to her post accident symptoms or otherwise until she saw Dr Strinich in December 1982. At that stage her only complaint was of chest discomfort and she apparently did not mention to the doctor that she had been injured in a motor vehicle accident.

The clinical notes of Dr Strinich are in evidence and indicate regular attendances on him up to and including an attendance on 12 July 1987 when for the first time the doctor's clinical notes refer to the fact that the patient had mentioned her involvement in a motor vehicle accident. That was, of course, just a little under five years after the accident. However, at some stage, about August 1983, a year after the accident, she had consulted Dr Jacovac who referred her for x-rays and proceeded to give her treatment for a range of orthopaedic type complaints related to the injuries that she complained of in the proceedings. It is quite clear that Dr Jacovac was informed of the occurrence of the road accident and was of the view from August 1983 onwards that the accident had caused the plaintiff's symptoms. There was a marked acceleration in the plaintiff's treatment including referrals to specialists such as Dr Bannister in 1986 about the time that these proceedings were commenced.