NSW INSURANCE MINISTERIAL CORPORATION v TUCKER [1994] NSWCA 220

NSW INSURANCE MINISTERIAL CORPORATION v TUCKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLY, MEAGHER and HANDLEY JJA 13 October 1994, 13 October 1994

[1994] NSWCA 220

DAMAGES — quantum — general damages interest on past general damages — no question of principle.

DAMAGES — quantum — interest on past general damages — whether such interest should have been awarded — held: it should not — accident occurred after s35D(1) of the Motor Vehicles (Third Party Insurance) Act 1942 came into force.

Motor Vehicles (Third Party Insurance) Act, 1942, s35D. ORDERS

1. Appeal allowed. 2. Verdict below set aside and in lieu thereof judgment for $107,139.68 substituted.

3. Appellant to pay the respondent's costs. Priestley JA Mr Justice Handley will give the first judgment in this matter.

Handley JA This is an appeal by the defendant from the decision of Judge Mahoney given on 31 May 1993. The only issue in the appeal relates to his Honour's award for general damages.

His Honour entered judgment for the plaintiff for $114.339.68, which included $85,000 for general damages, $40,000 for the past and $45,000 for the future. His Honour included $7,200 for interest on the past component of general damages but since the accident occurred after s35D(1) of the Motor Vehicles (Third Party) Insurance Act had come into force interest on the past general damages should not have been awarded.

His Honour's judgment must be revised in any event to exclude this allowance.

The challenge to the assessment of general damages was directed at his Honour's acceptance of the opinion of Doctor Dent, an expert psychiatrist. The plaintiff had a remarkable accident history which his Honour set out which I need not repeat. The problem arises from the fact that on 26 June 1984, a little over three weeks before the accident which has given rise to these proceedings, the plaintiff was involved in another motor vehicle accident at Miami, Queensland, which caused a whiplash injury and led to some medical treatment.