PHILLIPE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 252

PHILLIPE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 1 March 1994, 1 March 1994

[1994] NSWCA 252

In a personal injury case the trial Judge made credibility based findings adverse to the plaintiff and his witnesses, and heavily discounted his claim.

On appeal Held: The credibility based findings could not stand because they were substantially based on reasoning which was not supported by the evidence or which otherwise could not be supported.

Handley JA This is an appeal by the plaintiff, Hamid Phillipe, from the assessment of his damages by Judge Conomos in the District Court at Parramatta. The plaintiff was injured in a motor vehicle accident on 2 February 1987. Liability was not seriously in issue at the trial. His Honour gave judgment in favour of the plaintiff for $40,296.03, the principal component being general damages of $25,000.

The plaintiff came to this country from Lebanon in 1967 at the age of twenty. As the trial judge properly recognised he had an impressive work record prior to this accident. He was an upholsterer by trade and he commenced working on the shop floor with the Ford Motor Company at Homebush in August 1973. He progressed through various positions with increasing responsibilities until he was ultimately appointed as a supervisor, some seven years before the accident. This involved supervision of between twenty and thirty employees in the upholstery section of the factory.

The circumstances of the accident were not in dispute. The plaintiff was injured as a result of a rear end collision. The force of the impact resulted in the plaintiff being struck on the head by the metal cover of the rear wheel which had been in the back of the vehicle and perhaps the rear spare wheel and perhaps also by part of the rear seat.