NURTHERN v GALLO [1993] NSWCA 202

NURTHERN v GALLO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER JA, HANDLEY and Cripps JJA 23 March 1993, 23 March 1993

[1993] NSWCA 202

The appeal raised the issue of what component in an award related to non-economic loss, whether the judge erred in making allowance for increased anxiety, quantum and adequacy of reasons.

Motor Accidents Act Meagher JA I will ask Cripps JA to deliver the first judgment.

Cripps JA This is an appeal from a decision of Judge Barbour QC of the District Court published on 26 June 1992 entering judgment for the respondent/plaintiff for $66,746.40. The only issue in this appeal relates to so much of that award as related to non-economic loss. His Honour awarded $58,300 for that component, being 30 per cent of the maximum for a most extreme case referred to in s79 of the Motor Accidents Act.

The plaintiff was injured on 21 September 1989. His injuries are set out in Barbour DCJ's judgment and also in the written submissions handed to us by the parties. He suffered a head injury, an injury to his cervical spine, a fracture of the neck of the left fibula undisplaced and multiple superficial abrasions and bruising to his leg. He was admitted to hospital and shortly afterwards discharged. Later on he was admitted again. He had crutches for a period of time and he had to attend out-patients with respect to the injury to his leg.

The amended grounds of appeal are, first, that the learned judge erred in making an allowance for increased anxiety, it being submitted that the plaintiff, having an advanced anxiety state before the accident, had not called any evidence which would have entitled the judge to conclude that that state had been exacerbated by the injury that he suffered.

The judge found that the injury the plaintiff suffered was moderately severe. He also presumably accepted the plaintiff who said that his anxiety had doubled as a result of the accident. I was originally somewhat attracted to the submission by Mr Maconachie QC in this regard because the plaintiff had asserted that the car accident had also exacerbated his heart condition and therefore exacerbated his anxiety whereas the judge was not satisfied that the condition of the heart at the time he heard the matter was the result of the car accident.