BURKINSHAW v BAINES [1994] NSWCA 35

BURKINSHAW v BAINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 7 July 1994, 7 July 1994

[1994] NSWCA 35

DAMAGES — motor vehicle accident — second injury — whether second injury foreseeable and causally related to the first — held: it was — no question of principle.

DAMAGES — motor vehicle accident — whether award of general damages excessive — held: it was not — no question of Principle.

ORDERS

1. Appeal dismissed with costs.

2. Cross appeal allowed. The judgment of the trial Judge in the sum of $202,588.60 be set aside except as to the costs of the trial.

3. That there be substituted in lieu judgment for the respondent/cross appellant in the sum of $110,028, such judgment to date from date of trial, that was 5 December 1991. There will be no order for costs of the cross appeal.

Clarke JA I will ask Handley JA to give the first judgment.

Handley JA This is an appeal by the defendant from the assessment of the plaintiff's damages by his Honour JB Phelan in the District Court at Gosford. The plaintiff's claim arose out of two motor vehicle accidents which occurred on 3 April and 17 May 1982.

In the first accident the plaintiff was riding his motor cycle when it collided with a motor vehicle. He was thrown from his cycle onto the road and was injured. He suffered an injury to his left hand involving fractures of the metacarpal and the middle phalanx of the middle finger as well as soft tissue injuries to other parts of his hand and to other parts of his body.

On 17 May, while on a holiday trip with three friends he was injured again near Kempsey. The vehicle in which the four young people were travelling stopped at Smithtown and they got out of the car and looked around the town for about half an hour and then returned to the vehicle. The driver got into the driver's seat, the plaintiff got into the front passenger's seat and the other passengers into the rear passengers seats.