LESZKIEWICZ v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (FORMERLY GOVERNMENT INSURANCE OFFICE OF NSW) [1994] NSWCA 182

LESZKIEWICZ vy NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (formerly GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and SHELLER JJA 22 November 1994, 7 December 1994 [1994] NSWCA 182

DAMAGES — motor vehicle accident — previous accident — cause or aggravating factor of disability

INTEREST — Motor Vehicles (Third Party Insurance) Act 1942 — no award of interest on general damages — award of interest intended as part of general damages

The appellant was injured whilst riding as a passenger in a motor vehicle in 1984. The driver was insured by the respondent and liability was admitted. The appellant had previously been injured in another motor vehicle accident in 1982, and there was a question of whether the 1984 accident was the cause of or merely a factor aggravating her injuries. The trial judge considered the appellant's testimony unreliable and relied on medical evidence.

The appellant challenged, inter alia, the amount of the damages awarded and the trial judge's acceptance of one doctor's evidence in preference to that of other doctors.

Held:

1. It was open to the trial judge to act on the doctor's opinion and his conclusions based thereon must stand.

2. The amount awarded for general damages was not manifestly inadequate. ORDERS 1. Leave to the respondent to file a cross appeal refused; 2. Appeal dismissed with costs.

Mahoney JA I agree with the judgment of Sheller JA and with his Honour's reasons.

The decision of Freeman DCJ was a practical judgment in which his Honour, inter alia, saw interest and general damages as to a degree overlapping. In argument, counsel for the parties sensibly indicated that the award of interest, if otherwise not warranted, could properly be dealt with in the manner indicated by Sheller JA. The accident happened on 27 October 1984. To direct a re-trial of liability would hardly have been in accordance with the dictates of justice.